Anonymous v. Anonymous, xxxxx

Supreme Court, Orange County

Justice Debra J. Kiedaisch

Decided: Jan. 27, 2010

The respondent husband has brought a motion for summary

judgment1 dismissing the wife’s petition which alleged the

husband violated an order of protection entered on February

26, 2009 pursuant to a settlement stipulation in Family Court.

The order of protection, entered without any finding of fault

against the husband, directs him to refrain from committing a

family offense or criminal offense against the wife and to stay at

least 1000 feet away from the residence and place of employment

of the wife except for court-ordered child visitation or to

attend church services on Sundays. The wife’s violation petition,

supplemented by her affidavits filed on this motion, allege

the husband retained a private investigator who recorded

on DVD the wife entering a motel and having an affair with

one Father L., a priest assigned to the Church, where the wife

was employed. The wife alleges the husband furnished the

DVD to her superiors at the Church resulting in the wife being

forced to resign. The wife contends, in effect, there was no

legitimate purpose in the husband having her followed by a

private detective and delivering the DVD to Church officials

and that doing so was intended by the husband to cause her to

lose her employment and cause her personal humiliation and

suffering. The wife claims such conduct constitutes a violation

of the February 26, 2009 order of protection2. On November 10,

2008 the wife had filed a divorce action against the husband

which has also been assigned to the undersigned in the IDV

Part, Supreme Court. On or about January 15, 2009, the husband

filed an answer and counterclaims for divorce against the wife

alleging the wife was having sexual relations with a certain

individual. Subsequently, on or about November 5, 2009, the

husband filed a motion in the matrimonial action to amend

his answer and counterclaims alleging the wife was committing

adultery with Father L.3 In opposition to the husband’s

motion to dismiss the petition the wife’s attorney alleges the

husband hired the private detective after he filed his answer

and counterclaims in the divorce action. The wife’s attorney

contends the husband was not legally bound to turn over

the DVD to Church officials. The wife’s attorney contends the

husband violated the order of protection by acting through

an agent, the private detective he hired, to follow and record

the wife’s activities, and then turning over the DVD to the

church causing the wife to lose her employment.

On this summary judgment motion, it is not disputed the

wife was having an affair with Father L. The investigator avers

he gave his report, photos, and DVD proving such affair only

to the husband in August, 2009. The husband averred Father

L. routinely administered Sunday mass to the husband, the

wife, and their child while they attended church, together,

and continued to do so on two occasions in September, 2009

after the husband learned of their relationship. The husband

avers he was so upset that it was Father L. who was administering

mass to him and his family that he returned the host

to another priest, Father A., explaining why he could not

accept communion from Father L. The husband states that

in his anguish he told Father A. of the photos. The husband

states he pleaded with Father A. not to tell Father B., who is

Father’s A.’s superior, as the husband did not want a scandal

and did not want to embarrass his child. The husband states

he reluctantly agreed at the insistence of Father A. to discuss

the matter with Father B. upon Father A. explaining it was

Father B.’s duty to investigate the matter and take appropriate

action. The husband states Father B. came to the husband’s

house on or about September 2, 2009 to discuss the matter

and at the request of Father B. the husband gave him a copy

of the DVD obtained from the investigator.

If the proponent of a summary judgment motion to dismiss

the petition establishes a prima facie entitlement to judgment

as a matter of law, the petition must be dismissed upon

the failure of petitioner to raise a triable issue of fact which

would preclude such judgment (Alvarez v. Prospect Hosp., 68

NY2d 320; Jackson v. New York University Downtown Hosp,

__ N.Y.S.2d__, 2010 WL 190294, N.Y.A.D. 2 Dept., 2010.) Generally,

a party bound to obey an order enjoining the party from

committing certain acts or conduct may be guilty of contempt

of such order by abetting others to violate the order without

the party personally violating the order directly (Mayor of City

of New York v. New York & S.I. Ferry Co., 64 N.Y. 622). A person

bound by the injunction may not hire others to do what he

or she may not do and evade the injunction by connivance

(Neale v. Osborne, 15 How.Pr. 81). In Leggio v. Leggio, 190

Misc 2d 571, the respondent was ordered to stay away from

the petitioner’s residence. The respondent enlisted persons

to enter the residence and remove petitioner’s property. The

court held that respondent violated the order of protection

by enlisting other persons to act on his behalf to commit acts

he was proscribed from committing. The court in Leggio, in

effect, found that enlisting others to enter the petitioner’s

residence and remove her property constituted an unlawful

intrusion upon the rights secured to petitioner by the order of

protection for which the respondent could be held in contempt

(Samuksnis v. Priest, 21 AD3d 3814).

It was not improper, per se, for the husband to retain the

services of a private investigator. The hiring of a professional

licensed private investigator in a matrimonial action to gather

evidence is for a proper and legitimate purpose. No case is

brought to the attention of the court in which the hiring of a

private investigator for such purpose has been held, per se,

to be a criminal act including harassment or stalking in violation

of the Penal Law (Penal Law 240.26; Penal Law 120.45).

The husband had the right to gather evidence up to the date

of trial in defense of the matrimonial action and in support

of his own counterclaims. The husband was not required to

accept that the wife had necessarily ceased her extramarital

affair merely upon her assurance to him that she had. In

fact, such representation proved to be false as the wife does

not controvert that the private investigator disclosed as the

result of his investigation that she was continuing to have an

affair with Father L. Under the circumstances, the hiring of

the private investigator, in and of itself, was not an unlawful

intrusion upon the rights of the wife secured by the order or

protection (Samuksnis v. Priest, 21 AD3d 381).

The next inquiry is whether delivering the DVD to the Church

officials, which was not necessary for the husband to defend or

prosecute the divorce action, raises a triable issue of fact that

the husband in having the wife followed and recorded by a

private investigator intended to inflict emotional and financial

harm upon the wife which might constitute a violation of the

order of protection. Although harassment in the second degree

often involves conduct which places a person in fear of their

physical safety, the language of the statute does not limit itself

to only physical threats (Penal Law 240.26). If the husband had

the wife followed and recorded by a private investigator for

the purpose of gathering embarrassing material to deliver

to her employer with the intention to cause her to lose her

employment such might qualify as conduct which alarms or

seriously annoys another person, and serves no legitimate

purpose, constituting harassment in the second degree (Penal

Law 240.26[3]). In Eck v. Eck, 44 AD3d 1168, the conduct complained

of as constituting harassment in the second degree

consisted of respondent making disparaging remarks and

accusations concerning petitioner to petitioner’s employer.

The appellate court in affirming the dismissal of the petition

stated it did so in deference to the Family Court’s credibility

determinations that the proven conduct did not support a finding

of harassment in the second degree. The appellate court did

not expressly rule that communications to the other person’s

employer calculated to cause that person to be terminated from

employment could not as a matter of law constitute harassment,

if sufficiently proved. However, it is uncontroverted in

this case that Father L. continued to administer communion

to the husband, the wife, and the parties’ child on Sundays,

after the affair became known to the husband. Under such

circumstances, the husband has prima facie demonstrated

a legitimate and justifiable purpose in communicating with

Church officials about the relationship between his wife and

Father L. The husband avers he resisted turning over the DVD

to Church officials fearing it would embarrass the parties’ child,

but that Father A. and his superior, Father B., prevailed upon the

husband to do so. Such averment that Church officials pressed

to receive the DVD appears credible as it would be expected

that Church officials would seek to obtain definitive proof, if

it existed, concerning allegations that one of their priests was

committing adultery with a Church employee, who was also

the wife of a parishioner. Such conduct, if true, would be of

moral and ethical concern to the Church officials as well as

engendering a risk of exposing the Church to potential litigation

and liability. The averments by the husband concerning how

the turnover of the DVD occurred are not based on evidence

exclusively within the husband’s knowledge. There are other

witnesses to such conversations concerning how the DVD

came to be given to Father B., namely, Father A. and Father

B. The wife makes no request for discovery or depositions of

such witnesses prior to determination of this summary judgment

motion or articulates any basis for concluding that such

discovery would yield different evidence (Pistolese v. William

Floyd Union Free Dist., __ N.Y.S. 2d__, 2010 WL 187702, N.Y.A.D.

2 Dept., 2010; Stagg v. City of New York, 39 AD3d 533).

The husband in his motion papers has prima facie demonstrated

his entitlement to summary judgment dismissing the

petition by evidence showing he did not retain the private

investigator for an improper or illegitimate purpose such as

harassment or stalking under the Penal Law or intend to make

improper use of the private investigator’s work product DVD.

Upon the failure of the wife to demonstrate the existence of

a triable issue of fact that the husband committed a crime or

family offense against her or otherwise violated the order of

protection, summary judgment dismissing the petition should

be granted.

Accordingly, it is hereby

ORDERED that the petition and above captioned proceeding

are dismissed on the merits.