| Matter of Riedel v Vasquez |
| 2011 NY Slip Op 07058 [88 AD3d 725] |
| October 4, 2011 |
| Appellate Division, Second Department |
| In the Matter of Jeysel Riedel, Appellant, v MilagrosCarranza Vasquez, Respondent. |
—[*1] Covington & Burling LLP, New York, N.Y. (Mark P. Gimbel and Christopher Y. L. Yeungof counsel), for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appealsfrom an order of the Family Court, Queens County (DePhillips, J.H.O.), dated December 15,2010, which, without a hearing, granted the motion of Milagros Carranza Vasquez to dismiss thepetition for lack of subject matter jurisdiction.
Ordered that the order is affirmed, without costs or disbursements.
On August 10, 2010, the petitioner commenced this proceeding pursuant to Family Court Actarticle 8 seeking, inter alia, an order of protection against Milagros Carranza Vasquez(hereinafter the respondent), who is the estranged wife of the petitioner's live-in boyfriend. Thepetitioner has two children with the subject boyfriend, and the respondent has one child withhim. The petitioner alleged that she and the respondent, who do not reside together, have an"intimate relationship" within the meaning of Family Court Act § 812 (1). The FamilyCourt, without a hearing, dismissed the petition on the ground of lack of subject matterjurisdiction, and the petitioner appeals.
The Family Court is a court of limited subject matter jurisdiction, and "cannot exercisepowers beyond those granted to it by statute" (Matter of Johna M.S. v Russell E.S., 10 NY3d 364, 366 [2008]).Pursuant to Family Court Act § 812 (1), the Family Court's jurisdiction in family offenseproceedings 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" (Family CtAct § 812 [1]; see Matter of Seyev Lamar, 72 AD3d 975, 976 [2010]). "[M]embers of the same family or [*2]household" include, among others, "persons who are not related byconsanguinity or affinity and who are or have been in an intimate relationship regardless ofwhether such persons have lived together at any time" (L 2008, ch 326, § 7; seeFamily Ct Act § 812 [1] [e]; Matter of Seye v Lamar, 72 AD3d at 976). Expresslyexcluded from the ambit of "intimate relationship," are "casual acquaintance[s]" and "ordinaryfraternization 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-casebasis (see Matter of Seye v Lamar, 72 AD3d at 976). Relevant factors include "the natureor type of relationship, regardless of whether the relationship is sexual in nature; the frequency ofinteraction between the persons; and the duration of the relationship" (Family Ct Act § 812[1] [e]; see Matter of Willis vRhinehart, 76 AD3d 641, 642-643 [2010]; Matter of Seye v Lamar, 72 AD3d at976-977).
Here, the parties have no direct relationship and are only connected through a third party,who is the biological father of the parties' respective children. Additionally, the parties havenever resided together and do not take care of each other's children. It is also undisputed that therespondent's contact with the petitioner and/or her children has been minimal. Given theseundisputed facts, no hearing was required, as the Family Court possessed sufficient informationto determine that the parties are not and never have been in an "intimate relationship" as definedby Family Court Act § 812 (1) (e) (see Matter of Seye v Lamar, 72 AD3d at 977;cf. Matter of Jeffers v Hicks, 67AD3d 800, 801 [2009]). Under these circumstances, the Family Court providently exercisedits discretion in declining to conduct a hearing, and properly concluded that the petitioner and therespondent are not, and never were, in an "intimate relationship" within the meaning of FamilyCourt Act § 812 (1) (e) (see Matter of Seye v Lamar, 72 AD3d at 977; Matter of Mark W. v Damion W., 25Misc 3d 1148, 1151 [2009]). Consequently, the Family Court properly granted, without ahearing, the respondent's motion to dismiss the petition for lack of subject matter jurisdiction.Rivera, J.P., Balkin, Hall and Cohen, JJ., concur.