| Matter of Johnson v Carter |
| 2014 NY Slip Op 08024 [122 AD3d 853] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Tyrell Johnson,Appellant, v Jeffrey Carter, Respondent. |
Larry S. Bachner, Jamaica, N.Y., for appellant.
In a family offense proceeding pursuant to Family Court Act article 8, the petitionerappeals from an order of the Family Court, Kings County (Kusakabe, J.), datedSeptember 27, 2013, which, in effect, dismissed the petition for lack of subject matterjurisdiction.
Ordered that the order is affirmed, without costs or disbursements.
The petitioner commenced this proceeding pursuant to Family Court Act article 8seeking an order of protection against the respondent, his former girlfriend's live-inboyfriend. The petitioner and his former girlfriend have a child in common who resideswith the respondent and the petitioner's former girlfriend. The petition alleges, amongother things, that the respondent threatened to shoot the petitioner and his currentgirlfriend. Following a hearing on the petition, the Family Court, in effect, dismissed thepetition on the ground that the petitioner had failed to establish that the parties had an"intimate relationship" pursuant to Family Court Act § 812 (1) (e).
The Family Court is a court of limited jurisdiction, constrained to exercise only thosepowers conferred upon it by the New York Constitution or by statute (see Matter of H.M. v E.T., 14NY3d 521, 526 [2010]). Pursuant to Family Court Act § 812 (1), theFamily Court's jurisdiction in family offense proceedings is limited to certain enumeratedacts that occur "between spouses or former spouses, or between parent and child orbetween members of the same family or household." Included within the definition of"members of the same family or household" is, among others, "persons who are notrelated by consanguinity or affinity and who are or have been in an intimate relationshipregardless of whether such persons have lived together at any time" (Family Ct Act§ 812 [1] [e]). The legislature expressly excluded from the definition of"intimate relationship" a "casual acquaintance" and "ordinary fraternization between twoindividuals in business or social contexts" (Family Ct Act § 812 [1] [e]; see Matter of Jose M. v AngelV., 99 AD3d 243, 247 [2012]). Beyond those delineated exclusions, thelegislature left it to the courts to determine, on a case-by-case basis, what qualifies as anintimate relationship (see Matter of Jose M. v Angel V., 99 AD3d at 247).
Here, the evidence adduced at the hearing demonstrates that the parties have nodirect relationship and are connected solely through the child. The contact between theparties was minimal and only related to the child. Accordingly, the Family Court properlyconcluded that the parties did not have an "intimate relationship" with the meaning ofFamily Court Act § 812 (1) (e), [*2]andproperly, in effect, dismissed the petition for lack of subject matter jurisdiction (see Matter of Welch v Lyman,100 AD3d 642, 643-644 [2012]; Matter of Riedel v Vasquez, 88 AD3d 725, 727 [2011];cf. Matter of Jose M. v Angel V., 99 AD3d at 247). Rivera, J.P., Leventhal,Hinds-Radix and Barros, JJ., concur.