| Matter of Welch v Lyman |
| 2012 NY Slip Op 07306 [100 AD3d 642] |
| November 7, 2012 |
| Appellate Division, Second Department |
| In the Matter of Edmund T. Welch, Appellant, v Diane J.Lyman, Respondent. |
—[*1] Peter Dailey, New York, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appealsfrom an order of the Family Court, Kings County (Hepner, J.), dated July 15, 2011, whichgranted the respondent's motion to dismiss the petition for lack of subject matter jurisdiction and,in effect, dismissed the petition.
Ordered that the order is affirmed, without costs or disbursements.
The petitioner commenced this proceeding pursuant to Family Court Act article 8 seeking anorder of protection against the maternal grandmother of his newborn son, based on incidents inwhich the grandmother allegedly, inter alia, assaulted and harassed the petitioner. At the close ofthe petitioner's evidence at a hearing on the petition, the grandmother moved to dismiss thepetition for lack of subject matter jurisdiction, arguing that the petitioner had failed to establishthat the parties had an "intimate relationship" pursuant to Family Court Act § 812 (1) (e).The Family Court granted the motion.
The Family Court is a court of limited jurisdiction and cannot exercise powers beyond thosegranted to it by statute (see Matter ofJohna M.S. v Russell E.S., 10 NY3d 364, 366 [2008]; NY Const, art VI, § 13;Family Ct Act § 115). Pursuant to Family Court Act § 812, the Family Court hasconcurrent jurisdiction with the criminal courts over proceedings concerning certain criminal actsoccurring "between spouses or former spouses, or between parent and child or between membersof the same family or household" (Family Ct Act § 812 [1] [e]). Insofar as relevant here,"members of the same family or household" includes "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" (Family Ct Act § 812 [1]).Expressly excluded from the definition of "intimate relationship" are a "casual acquaintance" and"ordinary fraternization between two individuals in business or social contexts" (Family Ct Act§ 812 [1] [e]). Beyond those exclusions, the legislature left it to the courts to determine ona case-by-case-basis what qualifies as an intimate relationship within the meaning of FamilyCourt Act § 812 (1) (e), based upon consideration of factors such as "the nature or type ofrelationship, 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]).
Here, the parties have no direct relationship and are connected only through the child.According to the petitioner's testimony at the hearing, contact between the parties prior to thealleged incidents was minimal and, following the alleged incidents, was nonexistent. Indeed, thepetitioner testified that he "didn't believe [they] had any kind of relationship." Accordingly, theFamily Court properly concluded that the parties did not have an "intimate relationship" withinthe meaning of the statute, and properly granted the motion to dismiss the petition for lack ofsubject matter jurisdiction and, in effect, dismissed the petition (see Matter of Riedel v Vasquez, 88AD3d 725, 727 [2011]; Matter ofSeye v Lamar, 72 AD3d 975, 977 [2010]; Matter of Mark W. v Damion W., 25 Misc 3d 1148 [2009]; cf. Matter of Jose M. v Angel V., 99AD3d 243 [2012]; Morales vRoman, 30 Misc 3d 297 [2010]). Rivera, J.P., Balkin, Leventhal and Chambers, JJ.,concur.