| Matter of Gentile v Torres |
| 2016 NY Slip Op 03739 [139 AD3d 854] |
| May 11, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Raffaele Gentile,Respondent, v Michael Torres, Appellant. |
Daniel P. Moskowitz, Jamaica, NY, for appellant.
Elliot Green, Brooklyn, NY, for respondent.
Appeal from an order of protection of the Family Court, Queens County (DennisLebwohl, J.), dated July 31, 2015. The order of protection, after a hearing, and upon afinding that the appellant committed the family offense of harassment in the seconddegree, directed him to refrain from committing certain offenses against thepetitioner.
Ordered that the order of protection is affirmed, without costs or disbursements.
The petitioner commenced this proceeding pursuant to Family Court Act article 8seeking an order of protection against the appellant, who is the father of the petitioner'sthree-year-old grandson, alleging that the appellant had aggressively entered thepetitioner's home and pushed him. At the close of the petitioner's evidence at a hearingon the petition, the appellant moved to dismiss the petition for lack of subject matterjurisdiction, arguing that the petitioner had failed to establish that the parties had an"intimate relationship" pursuant to Family Court Act § 812 (1) (e). TheFamily Court denied the motion. At the close of his evidence, the appellant renewed hismotion, and the court once again denied the motion. The court then found that theappellant had committed the family offense of harassment in the second degree, andissued an order of protection directing him to refrain from committing certain offensesagainst the petitioner.
Pursuant to Family Court Act § 812, the Family Court has concurrentjurisdiction with the criminal courts over proceedings concerning certain criminal actsoccurring "between spouses or former spouses, or between parent and child or betweenmembers of the same family or household" (Family Ct Act § 812 [1]). Thestatute "offers victims of domestic violence a kinder and gentler way of stoppingviolence that does not involve the harshness and stigma of criminal sanctions [and]provides practical help in a civil proceeding to the victim by requiring a lower burden ofproof to be met than is necessary to obtain similar protections in a criminal proceeding"(Matter of Mark W. v DamionW., 25 Misc 3d 1148, 1149 [2009] [internal quotation marks and citationsomitted]; see Family Ct Act § 812 [2] [b], [c]). Insofar as relevanthere, "members of the same family or household" includes "persons who are not relatedby 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]). Expressly excluded from the definition of "intimaterelationship" are a "casual [*2]acquaintance" and"ordinary fraternization between two individuals in business or social contexts" (FamilyCt Act § 812 [1] [e]). Beyond those exclusions, the legislature left it to thecourts to determine on a case-by-case basis what qualifies as an intimate relationshipwithin the meaning of Family Court Act § 812 (1) (e), based uponconsideration of factors such as "the nature or type of relationship, regardless of whetherthe relationship is sexual in nature; the frequency of interaction between the persons; andthe duration of the relationship" (Family Ct Act § 812 [1] [e]).
Contrary to the appellant's contention, the Family Court properly determined that thepetitioner and the appellant were in an intimate relationship (see Family Ct Act§ 812 [1] [e]; Matter of Winston v Edwards-Clarke, 127 AD3d 771, 773[2015]; Matter of Willis vRhinehart, 76 AD3d 641, 642-643 [2010]; cf. Matter of Cambre v Kirton, 130 AD3d 926, 927[2015]). Accordingly, the Family Court properly determined that it had subject matterjurisdiction to entertain the petition.
Further, contrary to the appellant's contention, a fair preponderance of the credibleevidence supports the Family Court's finding that he committed the family offense ofharassment in the second degree, warranting the issuance of an order of protectionagainst him (see Family Ct Act § 832; Penal Law§ 240.26 [1]; Matter of Henderson v Henderson, 137 AD3d 911, 912[2016]; Matter of Niyazova vShimunov, 134 AD3d 1122, 1123 [2015]; cf. Matter of Charalambous v Zohios, 125 AD3d 963, 963[2015]). Balkin, J.P., Dickerson, Sgroi and Maltese, JJ., concur.