Charter v. Allen

206 A.D.3d 994

170 N.Y.S.3d 609

In the Matter of Patricia CHARTER, appellant,

v.McClarence ALLEN, respondent.

2021–03902

Docket No. O–29462–18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 2, 2022

June 29, 2022

Cheryl Charles–Duval, Brooklyn, NY, for appellant.

Charles Lawson, Brooklyn, NY, for respondent.

COLLEEN D. DUFFY, J.P., BETSY BARROS, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Kings County (Denise M. Valme–Lundy, Ct. Atty. Ref.), dated May 17, 2021. The order, after a hearing, granted the application of McClarence Allen to dismiss the petition for lack of subject matter jurisdiction and dismissed the petition.

ORDERED that the order is reversed, on the law, without costs or disbursements, the application to dismiss the petition is denied, the petition is reinstated, and the matter is remitted to the Family Court, Kings County for further proceedings consistent herewith.

The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against her sister's partner (hereinafter the respondent). After a hearing, the Family Court granted the respondent's application to dismiss the petition for lack of subject matter jurisdiction and dismissed the petition. The petitioner appeals. We reverse.

"[The] Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute" ( Matter of H.M. v. E.T., 14 N.Y.3d 521, 526, 904 N.Y.S.2d 285, 930 N.E.2d 206 ; see N.Y. Const, art VI, § 13 ; Family Ct Act § 115 ; Matter of Johna M.S. v. Russell E.S., 10 N.Y.3d 364, 366, 859 N.Y.S.2d 594, 889 N.E.2d 471 ). "[A] court's lack of subject matter jurisdiction is not waivable, but ‘may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action’ " ( Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 718, 658 N.Y.S.2d 205, 680 N.E.2d 578, quoting Robinson v. Oceanic Steam Nav. Co., 112 N.Y. 315, 324, 19 N.E. 625 ).

As relevant here, "[t]he family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute [certain enumerated crimes] ... between spouses or former spouses, or between parent and child or between members of the same family or household" ( Family Ct Act § 812[1] ). "For purposes of [Family Court Act article 8], ‘members of the same family or household’ shall mean ... persons related by consanguinity or affinity" ( id. § 812[1][a] ), and "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" ( id. § 812[1][e] ).

"A relationship of affinity is ‘the relation that one spouse has to the blood relatives of the other spouse; relationship by marriage’ " ( Matter of Arnold v. Arnold, 119 A.D.3d 938, 939, 989 N.Y.S.2d 879, quoting Black's Law Dictionary 70 [10th ed 2014]). For example, "while ... spouses remain married, a stepchild is related by affinity to a stepparent, and the Family Court has jurisdiction over a family offense petition brought by a stepchild against a stepparent" ( Matter of Arnold v. Arnold, 119 A.D.3d at 939, 989 N.Y.S.2d 879 ; see Matter of Jose M. v. Angel V., 99 A.D.3d 243, 248, 951 N.Y.S.2d 195 ; Matter of Dulanto v. Dulanto, 276 A.D.2d 694, 695, 714 N.Y.S.2d 748 ; Matter of Nadeau v. Sullivan, 204 A.D.2d 913, 914, 612 N.Y.S.2d 501 ).

"[T]he determination as to whether persons are or have been in an ‘intimate relationship’ within the meaning of Family Court Act § 812(1)(e) is a fact-specific determination which may require a hearing" ( Matter of Jose M. v. Angel V., 99 A.D.3d at 249, 951 N.Y.S.2d 195 ; see Matter of Rizzo v. Pravato, 170 A.D.3d 860, 861–862, 96 N.Y.S.3d 121 ). Although Family Court Act § 812(1)(e) expressly excludes a "casual acquaintance" and "ordinary fraternization between two individuals in business or social contexts" from the definition of "intimate relationship," "the legislature left it to the courts to determine on a case-by-case basis what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) based upon consideration of factors such as ‘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’ " ( Matter of Gentile v. Torres, 139 A.D.3d 854, 855, 31 N.Y.S.3d 200, ...