Opinion
O-03059/2016
09-15-2016
In the Matter of a Proceeding for a Family Offense Under Article 8 of the Family Court Act, Katherine K., Petitioner, v. Susanna A., Respondent. SUSANNA A., Petitioner, v. KATHERINE K., Respondent.
Upon the foregoing papers and for the following reasons, the motion by Respondent Susanna A. for dismissal of the Petition, pursuant to CPLR 3211(a)(2), is granted and both pending proceedings are hereby dismissed.
The following facts have been garnered from court appearances, documentary evidence and are essentially undisputed. On April 2, 2002, Petitioner Katherine K. and her husband, Michael T., had a now-teenager daughter, K.T., and lived together as a family. However, sometime in 2011, Mr. T. began an extra-marital affair with Ms. A., and their union has procreated two infant children. Since then, A. claims that K. has been insulting, stalking and harassing her and her children for years in her home in Brooklyn, prompting her eventual move to Staten Island. According to A., her move did not deter the "continued onslaught of harassment" she has endured from K. Things came to a head, when on November 1, 2015, K. allegedly blocked A. with her car to prevent her from leaving the courthouse building in Staten Island, and K. was arrested. There is currently a criminal proceeding against K. and a Temporary Order of Protection from Kings County Criminal Court was issued against her and in favor of A. directing her to stay way from A. wherever she may be and ordering her to refrain from communicating, harassing, stalking, coercing, threatening or committing any criminal offense against A..
By Petition dated February 3, 2016, Ms. K. commenced the instant family offense proceeding against Ms. A. in Kings County Family Court, alleging that A. has herself engaged in stalking, harassment, endangerment and threatening behavior against K. when A. "drove by [her] house again, screaming out of her car window, I'm going to get you, stupid fucking bitch...Your daughter better watch out too.'" K. also alleged that "in January 2011, [A.] stabbed me after I found out she was sleeping with my husband," but that no criminal complaints had been filed concerning those incidents. Tellingly, K. acknowledged in her Petition that she is "not related to the Respondent" A.. On February 4, 2016, the Family Court (Bourne-Clark, J.) granted a Temporary Order of Protection against A. ordering her to stay way from K., her home, her employment and wherever she may be, and directing her to refrain from communicating with or assaulting, stalking, coercing, threatening or committing any criminal offense against her.
Following court appearances raising the issue of lack of intimate relationship and hearing the parties arguments, on February 9, 2016, the Family Court (Vargas, J.) modified the Temporary Order of Protection by removing the stay away to contain only a refrain by A. from committing criminal acts against K. Then, by Petition dated February 11, 2016, A. cross-petitioned for a family offense finding against K. claiming that, since 2011, K. has hit her with her car, broken windows in her home, been verbally abusive, posted flyers on people's cars slandering A. and telling her neighbors that she performs sexual favors and more. A. claims that she is fearful for the safety of herself and her daughter and is seeking an Order of Protection to keep K. away from her, her children, and their home. No issue has been joined of the Cross Petition because personal service has not been accomplished.
By Notice of Motion dated July 20, 2016, A. now moves for an order dismissing the K. Petition pursuant to CPLR 3211(a)(2), claiming that the Family Court lacks subject matter jurisdiction to entertain this proceeding between people who do not share an "intimate relationship" within the meaning of Family Court Act § 812(1)(e). A. argues that she has no direct, consanguinity or affinity relationship with K., other than being connected by the fact that they had or are having sexual relations with the same man, Mr. T. They have never lived or socialized together, and their interactions "have been infrequent at most." In opposition, K.' counsel conclusorily contends that there is an intimate relationship between the parties created by the occasional interaction of Mr. T. with both set of his children: his children with A. and his wife and their teenage child. He argues that the shared familial connection of sorts between the parties will increase throughout the duration of the children's lives and increased interactions. No personal affidavit by K. has been submitted attesting to the same. This Court disagrees with K.
"Family Court is a court of limited jurisdiction and, thus, it cannot exercise powers beyond those granted to it by statute'" (Matter of Johna M.S. v. Russell E. S., 10 NY3d 364, 366 [2008]; see Matter of H.M. v E.T., 14 NY3d 521, 526 [2010]). Pursuant to Family Court Act § 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain proscribed criminal acts committed among persons related by consanguinity or affinity, with children in common, or persons who share an "intimate relationship" with each other (Family Ct. Act § 812[1][e]; see Matter of Cambre v Kirton, 130 AD3d 926, 927 [2nd Dept 2015]; Matter of Jessica D. v Jeremy H., 77 AD3d 87, 88—89 [3rd Dept 2010]). While not clearly defined, the statute and precedent have elucidated certain factors to be addressed in determining whether an "intimate relationship" exists between the parties, including, "but not limited to: the nature or type of relationship regardless of whether or not the element of sexual intercourse is involved, the frequency of interaction between the persons, and the duration of the relationship" (Family Ct. Act § 812[1][e]; see Matter of LaVann v Bell, 77 AD3d 1422, 1423 [4th Dept 2010]; Matter of Jessica D. v Jeremy H., 77 AD3d at 89).
"For a relationship to be intimate' within the meaning of the statute, it must be direct, not one that is based upon multiple degrees of separation or that exists only through a shared connection with a third party" (Matter of Mark W. v Damion W., 25 Misc 3d 1148, 1151 [NY Fam Ct 2009 (O'Shea, J.)]; see Matter of Perrella v Freely, 90 AD3d 664, 665 [2nd Dept 2011]). Moreover, the Legislature expressly excluded from the definition a "casual acquaintance" and "ordinary fraternization between two individuals in business or social contexts" (Family Ct. Act § 812[1][e]). Finally, it has been well-settled that the Family Court need not hold a hearing, if "possessed [of] sufficient relevant information to allow it to make an informed determination as to whether the parties are or have been in an intimate relationship'" (Matter of Seye v Lamar, 72 AD3d 975 [2nd Dept 2010]; see Matter of Riedel v Vásquez, 88 AD3d 725 [2nd Dept. 2011]).
Applying the foregoing principles to the matter at bar, Ms. A. has sufficiently established that the relationship between the parties is too attenuated to constitute an "intimate relationship" within the meaning of Family Court Act § 812(1)(e). There is no evidence in the record that K. and A. have a direct or familial relationship or have ever lived together (see Matter of Tyrone T. v. Katherine M., 78 AD3d 545 [1st Dept 2010]; Matter of Seye v Lamar, 72 AD3d at 976—977). Their contacts have been infrequent, brief and mostly during court appearances. Nor have they apparently interacted with — or cared for — each other's children (see Matter of Riedel v Vásquez, 88 AD3d 725 [2d Dept 2011]). Indeed, they are only connected through Mr. T., who had marital/sexual relations with each party and fathered their children (see Matter of Cambre v Kirton, 130 AD3d at 927). While A. has an "intimate relationship" with T. because they have children in common, and K. and her husband have a statutory relationship within the meaning of Family Court Act § 812, A. and K. do not have any cognizable or "intimate relationship" with each other (see Matter of Perrella v Freely, 90 AD3d at 243; Matter of Riedel v Vásquez, 88 AD3d at 727; Matter of Mark W. v Damion W., 25 Misc 3d at 1151).
Nor do the cases cited by K. call for a different conclusion. Matter of Winston v Edwards-Clarke (127 AD3d 771 [2nd Dept 2015]) involved a family offense proceeding between a father's fiancé and the mother of his children, who lived in the father's household. The Winston court specifically found that an intimate relationship was established by the fact that the fiancé was living with the mother's children and their father, who had custody of them, and was acting as a stepmother, involved in frequent contacts and arranging all the children's visits with the mother (id. at 773). Similarly, in Matter of José M. v Angel V. (99AD3d 243 [2nd Dept 2012]), the father commenced a family offense proceeding on behalf of his daughter against the mother's live-in boyfriend, who acted as an abusive stepfather and with whom the father had contact during visitations. Unlike here, both of these cases involved quasi-familiar and frequent interactions between the parties. More on point are Matter of Cambre v Kirton (130 AD3d at 927) and Matter of Riedel v Vásquez (88 AD3d at 726-727), where the Appellate Division held in a strikingly similar fact patterns that no intimate relationship existed because "the parties have no direct relationship and are only connected through a third party, who is the biological father of the parties' respective children."
In accordance with the foregoing, A.'s motion to dismiss is granted, the K. proceeding is hereby dismissed for lack of subject matter jurisdiction, and the Temporary Order of Protection is vacated. Similarly, A.'s Cross Petition is hereby dismissed for the same reasons. Given this result, the September 29, 2016 court appearance before the undersigned is hereby canceled. This constitutes the decision and order of the Court.
E N T E R:
Dated: September 15, 2016 Brooklyn, New York J.F.C.