Opinion
Docket Nos. O-03129-22 O-03129-22/22B
12-12-2022
In the Matter of a Family Offense Proceeding Under Article 8 of the Family Court Act, J.M., Petitioner, v. M.F., Respondent.
Samuel Feldman Esq. for Petitioner J.M. Brandy Beltas Esq. for Respondent M.F.
Unpublished Opinion
Samuel Feldman Esq. for Petitioner J.M.
Brandy Beltas Esq. for Respondent M.F.
Hon. Hasa A. Kingo, J.F.C.
The following papers numbered 1 to 17 were read on this motion to suspend visitation:
Papers: No(s). Exhibits
Notice of Motion 1
Affirmation of Brandy Beltas, Esq. in Support 2-6, exhibits A-D
Affidavit of M.F. in Support 7
Affirmation of Samuel Feldman, Esq. in Opposition (Response to Motion) 8
Affidavit of J.M. in Opposition 9
Affirmation of Brandy Beltas, Esq. in Reply 10-14, exhibits A-D
Affidavit of M.F. in Reply 15-17, exhibits E-F
In this family offense proceeding brought under Article 8 of the Family Court Act, respondent M.F. ("Respondent") moves to dismiss the petition on the grounds that this court lacks subject matter jurisdiction over the action, for sanctions pursuant to 22 NYCRR 130.1-1, for attorneys' fees, and for such other and further relief as may be deemed just, necessary, and proper. After consideration of the motion papers and exhibits cited above, procedural history of the case, testimony of the parties offered at a fact-finding hearing, and oral arguments made by counsel, the court makes the following findings of fact and conclusions of law, and the motion is granted in part.
Background
On April 29, 2022, petitioner J.M. ("Petitioner") filed a family offense petition under Article 8 of the Family Court Act ("FCA") against Respondent (Docket no. O-03129-22) (the "petition"). On the portion of the petition form wherein one can designate the parties' relationship, Petitioner selected the box indicating "we live together." Following an intake appearance before the undersigned, a usual terms temporary order of protection was issued in favor of Petitioner and against Respondent. On May 9, 2022, Petitioner filed a petition for violation of the temporary order of protection (Docket no. O-03129-22/22A). Following an intake appearance on the record before Court Attorney Referee Jacob Maeroff, the violation petition was dismissed pursuant to an order of the same date, for failure to state a cause of action. Petitioner filed a second violation petition on June 9, 2022 (Docket no. O-03129-22/22B) (the "violation petition"), in which he alleges that Respondent engaged in family offenses against him including aggravated harassment, harassment, stalking, and threats. Following an intake appearance on the record before Court Attorney Referee Jessica Brenes, the temporary order of protection was modified to include full stay away and no communication provisions.
Respondent now moves to dismiss the petition pursuant to CPLR §3211 (a)(2) for lack of subject matter jurisdiction and for sanctions and attorneys' fees for frivolous conduct pursuant to 22 NYCRR §130.1-1. Respondent argues that this court lacks subject matter jurisdiction because there was no "intimate relationship" or other qualifying relationship between the parties, as required under FCA §812 (1). Moreover, Respondent contests the factual allegations asserted by Petitioner, and asserts that "she never harmed or harassed him" (Beltas affirmation in support at ¶ 34). Petitioner opposes the motion and contends that the parties have an intimate friendship that satisfies the requirements set forth in FCA §812 (1)(e). He attests that their families "have been quite close for over 20 years," the parties shared their locations in a cell phone application, and that the parties have frequent contact and conversations, including conversations regarding sexual and other personal or sensitive topics (Flanagan affidavit in opposition ¶¶ 3, 5, 7-13). On reply, Respondent reiterates her contention that the parties were "nothing more than casual acquaintances who became roommates out of mutual convenience" and that their relationship was "strictly contractual" (Beltas affirmation in reply ¶ 7).
The court heard oral argument from counsel to the parties and heard sworn testimony from the parties themselves regarding their relationship at an abbreviated hearing held on November 17, 2022 (see Gustavo D. v Michael D., 146 A.D.3d 530, 906 [1st Dept. 2017], citing Seye v. Lamar, 72 A.D.3d 975, 977 [2d Dept. 2010][The determination of whether a relationship falls within the court's jurisdiction requires a hearing, unless the court has sufficient information before it based on uncontested matters]).
Discussion
The Family Court is a court of limited jurisdiction, and "cannot exercise powers beyond those granted to it by statute" (Matter of Royster v Murray, 157 A.D.3d 701, 702 [2018]). Pursuant to Family Court Act §812 (1), the Family Court's jurisdiction in family offense proceedings is limited to certain prescribed acts that occur "between spouses or former spouses, or between parent and child or between members of the same family or household" (see Matter of Winston v Edwards-Clarke, 127 A.D.3d 771, 772 [2015]; Matter of Seye v Lamar, 72 A.D.3d 975, 976 [2010]). The relationships that qualify as "members of the same family or household" are delineated in FCA §812 (1)(a)-(e). It is undisputed that the parties in this proceeding are not related by blood or marriage and neither party asserts that they have a qualifying relationship pursuant to FCA §812 (1)(a) (consanguinity or affinity), (b) (marriage), (c) (formerly married), or (d) (child in common). Rather, the parties dispute only whether they have a qualifying relationship pursuant to FCA §812 (1)(e).
Pursuant to FCA §812 (1)(e), the Legislature expanded the definition of "members of the same family or household" to include, among others, "persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time" (Family Ct Act §812 [1] [e]). "Casual acquaintance[s]" and "ordinary fraternization between two individuals in business or social contexts" are expressly excluded (Family Ct Act §812 [1] [e]). Beyond those delineated exclusions, the determination of what qualifies as an intimate relationship within the meaning of FCA §812 (1) (e) is made on a case-by-case basis (see Royster, 157 A.D.3d at 702; Matter of Seye v Lamar, 72 A.D.3d at 976). Section 812 (1)(e) of the Family Court Act outlines factors to consider in defining an intimate relationship, including but not limited to "the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship."
Upon consideration of the affidavits and sworn testimony offered by the parties, it is the determination of this court that Petitioner and Respondent's relationship was akin to that of roommates with a rental agreement. As such, Petitioner and Respondent's relationship does not qualify as an intimate relationship within the meaning of FCA §812 (1)(e). Although Petitioner testified that the parties' families have been close for over twenty years, and Respondent confirmed that she has been friends with Petitioner's cousin, "Espy," for over twenty years, neither party indicated that they were close during this period. Rather, both parties testified that they did not meet until 2017, when they were introduced at a graduation party. Both also testified that their next meeting was the following year, when they went to dinner with Espy and thereafter exchanged telephone numbers. Respondent testified credibly that she did not have Petitioner's telephone number prior to the dinner in 2018. In the three years or more years that followed this dinner, the parties maintained some contact, but it was sporadic and infrequent. Assuming arguendo, that the court credits Petitioner's assertion that he visited Respondent's apartment "at least six times" during this time, this amounts to only seven in-person meetings over the course of approximately four years, which is more indicative of a casual acquaintanceship than an intimate friendship.
The parties became roommates in December 2021, but this arrangement only lasted until May 31, 2022, following a breakdown in the relationship which culminated in Petitioner filing this family offense petition in April 2022. The court credits Respondent's testimony that the roommate arrangement was only intended to continue until the end of her apartment lease in July 2021. Petitioner also testified that he paid Respondent rent in the amount of $2,100 a month and a deposit for living in the apartment, and Respondent confirmed that Petitioner was never late paying the rent. Both the brief tenure of the roommate arrangement and the payment terms are indicative of a business arrangement for a sublet or other roommate arrangement rather than a close, intimate friendship.
Additionally, the court finds that Petitioner's credibility is called into question because much of Petitioner's testimony during the abbreviated hearing appeared to be intended to exaggerate the nature of the relationship (see Coleman v McKenzie, 75 Misc.3d 1215 (A) at *3 [NY Fam Ct 2022]). Despite testimony from both parties that they did not engage in a sexual relationship, Petitioner made repeated references to his sexual orientation and purported sexual discussions between the parties, and between Petitioner and Respondent's boyfriend, regarding fetishes and other sexual activities. This appears to have been intended to exaggerate the nature of the parties' relationship or imply that there was a sexual element to their interactions, despite his clear representation that they did not engage in a sexual relationship. Although, the absence of sexual intimacy between the parties does not by itself conclusively establish that there was no "intimate relationship" within the meaning of Family Court Act §812 (1)(e) (Raigosa v Zafirakopoulos, 167 A.D.3d 748, 749 [2d Dept 2018]), the manner in which this testimony was offered is incredible. The court also found Petitioner's emphasis on the parties' purported discussions regarding mental health and other personal issues to be incredible as a matter of law.
Furthermore, even if the parties had the requisite relationship to establish subject matter jurisdiction pursuant to FCA §812 (1), the petition fails to "sufficiently plead conduct constituting a pattern of imminent and ongoing danger" (Latava P. v Charles W., 171 A.D.3d 525 [1st Dept 2019]), and the petition would be dismissed on this basis alone.
To the extent that Respondent seeks sections and fees in connection with the family offense petitions, the motion is denied because 22 NYCRR § 130-1.1 does not apply to Article 8 proceedings (22 NYCRR § 130-1.1 [a]).
Accordingly, it is
ORDERED that the motion to dismiss is granted in part and to the extent that the petitions filed under docket numbers O-03129-22 and O-03129-22/22B are dismissed for lack of subject matter jurisdiction, and the temporary order of protection is vacated; and it is further
ORDERED that the remainder of the motion is denied.
This constitutes the order and decision of the court.