| Matter of LaVann v Bell |
| 2010 NY Slip Op 06978 [77 AD3d 1422] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Ivoire LaVann, Respondent, v Jacob Bell,Appellant. |
—[*1] Alan Birnholz, East Amherst, for petitioner-respondent.
Appeal from an order of the Family Court, Erie County (Rosalie Bailey, J.), entered March 5,2009 in a proceeding pursuant to Family Court Act article 8. The order granted an order of protectionthrough March 5, 2011.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent contends in this family offense proceeding pursuant to Family CourtAct article 8 that Family Court lacked subject matter jurisdiction because his alleged actions that gaverise to the finding of harassment in the second degree and thus the order of protection in questionoccurred prior to the effective date of the amendment to Family Court Act § 812 (1), whichexpanded the definition of the term "members of the same family or household." We reject thatcontention. Family Court Act § 812 (1), which limits the jurisdiction of Family Court in familyoffense proceedings to certain proscribed acts occurring between specified individuals, was amendedeffective July 21, 2008 to include persons such as respondent, i.e., those "persons who are not relatedby consanguinity or affinity and who are or have been in an intimate relationship regardless of whethersuch persons have lived together at any time" (§ 812 [1] [e], as amended by L 2008, ch 326,§ 7). Contrary to respondent's contention, the date of entry of the order of protection controls,rather than the date of respondent's actions underlying the order of protection. Indeed, the legislativehistory of the statute as amended expressly provides that the statute as amended applies to orders ofprotection that were "entered on or after such effective date" (L 2008, ch 326, § 16, as amendedby L 2009, ch 17, § 1), i.e., July 21, 2008, and here the order of protection was entered in2009.
Finally, we conclude that the court properly determined that petitioner and respondent had been inan intimate relationship within the meaning of Family Court Act § 812 (1) (e), and the courttherefore had jurisdiction to issue the order of protection against respondent. The evidence presented atthe hearing on the petition established that the parties had been in a sexual relationship and thatpetitioner was pregnant with respondent's child. Furthermore, petitioner had previously givenrespondent a key to her apartment, and she described respondent as her "ex-partner" and had endedtheir relationship in early [*2]August 2008. Present—Centra,J.P., Peradotto, Carni, Lindley and Sconiers, JJ.