Silverman v. Leibowitz

208 A.D.3d 1332

174 N.Y.S.3d 598 (Mem)

In the Matter of Joel SILVERMAN, appellant,

v.Judith Rachel LEIBOWITZ, respondent.

(Proceeding No. 1)

In the Matter of Joel Silverman, appellant,

v.Allen Leibowitz, respondent.

(Proceeding No. 2)

2021–03604, 2021–03606

Docket Nos. O-1098-20, O-1100-20

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

Submitted—September 6, 2022

September 28, 2022

Meth Law Offices, PC, Chester, NY (Michael D. Meth of counsel), for appellant.

J. Douglas Barics, Commack, NY, for respondents.

HECTOR D. LASALLE, P.J., ROBERT J. MILLER, LARA J. GENOVESI, LILLIAN WAN

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 8, the petitioner appeals from two orders of dismissal of the Family Court, Rockland County (Rachel E. Tanguay, J.), both entered January 14, 2021. The first order of dismissal, without a hearing, dismissed the family offense petition asserted against Judith Rachel Leibowitz with prejudice and vacated a temporary order of protection dated July 17, 2020, against Judith Rachel Leibowitz. The second order of dismissal, without a hearing, dismissed the family offense petition asserted against Allen Leibowitz with prejudice and vacated a temporary order of protection dated July 17, 2020, against Allen Leibowitz.

ORDERED that the orders of dismissal are affirmed, with costs.

The petitioner commenced these family offense proceedings pursuant to Family Court Act article 8 against the respondents, the father and sister of his former spouse. The petitioner and his former spouse have two children together, and the respondents are the grandfather and aunt of the children. During the initial appearance before the Family Court, the court questioned the parties about the nature of their relationship and the frequency of their interactions with each other. The parties confirmed that they never resided together, did not interact with each other in a family-like way, and the petitioner, responding under oath, stated that he had no direct interaction with the respondents following the divorce from his former spouse. Thereafter, the court dismissed the family offense petitions, with prejudice, for lack of subject matter jurisdiction.

"The Family Court is a court of limited jurisdiction, and thus, it ‘cannot exercise powers beyond those granted to it by statute’ " ( Matter of Kane v. Tung, 194 A.D.3d 718, 719, 143 N.Y.S.3d 590, quoting 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 members of the same family or household’ " ( Matter of Kane v. Tung, 194 A.D.3d at 719, 143 N.Y.S.3d 590, quoting Family Ct Act § 812[1] ; see Matter of Seye v. Lamar, 72 A.D.3d 975, 976, 900 N.Y.S.2d 112 ). "[M]embers of the same family or household" 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] ; see Matter of Seye v. Lamar, 72 A.D.3d at 976, 900 N.Y.S.2d 112 ). Expressly excluded from the ambit of "intimate relationship" are "casual acquaintance[s]" and "ordinary fraternization between two individuals in business or social contexts" ( Family Ct Act § 812[1][e] ). Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis, and the factors a court may consider include "the...