Rizzo v. Pravato

170 A.D.3d 860

96 N.Y.S.3d 121

Justina M. Vega RIZZO, Appellant,

v.Antoinette M. PRAVATO, Respondent.

2018–04263

Docket No. O–6966–17

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

Submitted—January 28, 2019

March 13, 2019

Nazar Khan, Brooklyn, NY, for appellant.

Janis A. Parazzelli, Floral Park, NY, for respondent.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Kings County (Nisha Menon, Ct. Atty. Ref.), dated March 13, 2018. The order, without a hearing, dismissed the petition for lack of subject matter jurisdiction.

ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Kings County, for a hearing to determine whether the Family Court has subject matter jurisdiction pursuant to Family Court Act § 812(1)(e), and further proceedings thereafter, if warranted.

On or about March 16, 2017, the petitioner commenced this proceeding pursuant to Family Court Act article 8 seeking, inter alia, an order of protection against the respondent. The petitioner's mother was married to the respondent's brother. The respondent was the sister of the petitioner's stepfather.

The Family Court, without conducting a hearing, dismissed the petition on the ground of lack of subject matter jurisdiction, and the petitioner appeals.

The 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 N.Y.3d 364, 366, 859 N.Y.S.2d 594, 889 N.E.2d 471 ; see N.Y. Const, art VI, § 13 ; Family Ct Act § 115 ). Pursuant to Family Court Act § 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur "between spouses or former spouses, or between parent and child or between members of the same family or household."

Here, it is undisputed that the parties are not spouses, former spouses, or parent and child. Thus, the Family Court would have jurisdiction over the instant proceeding only if the petitioner and the respondent are "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" is defined as, inter alia, "persons related by consanguinity or affinity," or "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][a], [e] ). It is undisputed that the parties were not related by consanguinity, and, contrary to the petitioner's contention, the parties were not related by affinity (see generally Matter of Anita C. v. Johana S., 48 Misc.3d 619, 622, 13 N.Y.S.3d 795 ; cf. Matter of Arnold v. Arnold, 119 A.D.3d 938, 939, 989 N.Y.S.2d 879 ).

The Family Court should not have determined, without a hearing, that the parties were not and had never been in an intimate relationship. 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, quoting Family Ct Act § 812[1][e] ; see Matter of Jose M. v. Angel V., 99 A.D.3d 243, 247, 951 N.Y.S.2d 195 ). "[T]he determination as to whether persons are or have been in an ‘intimate relationship’ within the meaning of Family...