In accordance with CPLR 2219 (a), the following papers were read and considered in addition to a review of the contents of the file in this matter:

PAPERS        ;        NUMBERED

Petitioner's Notice of Cross-Motion, Petitioner's

Affidavit, Attorney's Affirmation in Opposition to Respondent 1-112

E.P.'s Motion Dismiss and in Support of Cross-Motion

And Exhibits

On September 27, 2024, C.W., hereinafter, petitioner, filed a family offense petition seeking an order of protection for herself and her son against E.P., alleging disorderly conduct, harassment, aggravated harassment and attempted assault, based upon an alleged attempted assault occurring in Yonkers Criminal Court August 21, 2024 when petitioner and respondent were present there in connection with a matter brought by petitioner against respondent's daughter H.P. (the "criminal court appearance"). A temporary order of protection was issued. The petition states that the parties are "related by blood or marriage" in that E.P. is the mother of the half-sibling of petitioner's child, H.P. Petitioner also filed a family offense petition against H.P. and H.P.'s aunt, A.P. (collectively the "P respondents) based upon the same criminal court appearance, as well as alleged text messages sent to petitioner by the P respondents. The P respondents moved to dismiss the family offense petitions against them. By order of this Court entered March 7, 2025, the family offense petitions against the P respondents were dismissed for lack of subject matter jurisdiction based upon the absence of an intimate relationship between the parties as required by the Family Court Act (the "Order of Dismissal").

Counsel for E.P. filed the instant motion to dismiss for lack of jurisdiction on the grounds that there is no intimate relationship between petitioner and respondent E.P. Petitioner's counsel filed opposition to the instant motion and cross-moved for a decree seeking to vacate the Order of Dismissal as "null and void" and to reinstate the petitions against the P respondents.

The relevant facts are as follows: Petitioner and F.P., Jr., had a child, G.P., on XX XX, 2024. F.P., Jr., is the father of H.P. A.P. is the sister of F.P., Jr. E.P. is H.P.'s mother. E.P. states in her affirmation that she and her daughter have no relationship with F.P., Jr.; the only time she has seen him in the last 15 years is during the recently filed court proceedings. She further states that she and her daughter do not spend time with him, even on holidays and birthdays, nor do they exchange telephone calls. She states that she does not know petitioner and had never met or spoken to her until the criminal court appearance and does not know where she resides. She states that she is aware of the possibility that petitioner and F.P., Jr., may have a child in common.

Petitioner's affirmation in opposition to the motion to dismiss and in support of the cross-motion realleges the facts regarding the incident that occurred during the criminal court appearance, setting forth the alleged roles of each of the respondents on that day. In addition, petitioner states that respondents sent her numerous threatening and harassing text messages, Instagram messages, and placed telephone calls to her since learning of her pregnancy. Petitioner attaches nearly one hundred pages of exhibits, including screenshots of texts, Instagram messages and incoming calls, as proof of these communications.

Petitioner does not allege any further relationship between herself and the respondents other than as set forth in the family offense petitions and her affidavit.

The Family Court is a court of limited jurisdiction and cannot exercise powers beyond [*2]those granted to it by statute (see Matter of Johna 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 has concurrent jurisdiction with the criminal courts over proceedings concerning certain criminal acts occurring "between spouses or former spouses, or between parent and child or between members of the same family or household" (Family Ct Act § 812 [1] [e]). Prior to July 21, 2008, for the purposes of Family Court Act Article 8, the term "members of the same family or household" was defined as (1) persons related by consanguinity or affinity; (2) persons legally married to one another; (3) persons formerly married to one another; and (4) persons who have a child in common regardless of whether such persons have been married or have lived together at any time (see Family Ct Act former § 812 [1], as amended by L 1994, ch 222, § 7; Matter of Seye v Lamar, 72 AD3d at 976). In 2008, the legislature expanded the definition of "members of the same family or household" to include, among others, "persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time" (Family Ct Act § 812 [1] [e] [hereinafter the 2008 amendment]). The legislature expressly excluded from the definition of "intimate relationship" a "casual acquaintance" and "ordinary fraternization between two individuals in business or social contexts" (Family Ct Act § 812 [1] [e]). However, beyond those delineated exclusions, the legislature left it to the courts to determine, on a case-by-case basis, what qualifies as an "intimate relationship" within the meaning of Family Court Act § 812 (1) (e). Additionally, the legislature suggested certain factors which the courts may consider, including, but not limited to, "the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship" (Family Ct Act § 812 [1] [e]). For an intimate relationship to exist, within the meaning of Family Ct Act § 812, the relationship should be direct and not through third parties. (See Matter of Jose M. v Angel V., 99 AD3d 243, 24 [2d Dept 2012], Matter of Parella v Freely, 90 AD3d 664, 665 [2d Dept 2011]).

Application of the above referenced factors to determine whether an intimate relationship exists in absence of one of the enumerated statutory bases, makes evident that the parties here do not share an "intimate relationship." The parties have no direct relationship and are connected, if at all, only through a third party, i.e., petitioner's infant child. Examination of the frequency of the parties' interactions, likewise, leads to the same conclusion. By all accounts, the parties met for the first time at the criminal court appearance. Petitioner does not dispute this. Nor does she allege that the parties have met since that single time. Moreover, petitioner does not allege that there is any prospect for their interacting in the future. It is not alleged that the parties have ever been friends, acquaintances, roommates, neighbors or even co-workers. The only contact that petitioner alleges outside of the criminal court appearance is the alleged criminal behavior, i.e., threatening and harassing electronic communications. These communications are demonstrably abhorrent. Nevertheless, even if proven to be sent from respondents to petitioner, these unsolicited and unwanted communications cannot be said to form the basis of an intimate relationship between the parties such that the matters should properly be heard in Family Court.

Courts of this state have repeatedly dismissed family offense petitions due to the absence of an intimate relationship in circumstances like those presented here. In Silverman v. Leivbowitz, 208 AD3d 1332 (2022), where the respondents were the father and sister of the petitioner's former husband, even where there were children of the marriage, the Second Department, determined there was no intimate relationship between the parties because the [*3]parties never lived together and have no direct interaction. Similarly, in Matter of Seye v Lamar, 72 AD3d 975, the Second Department dismissed the family offense petition where the parties were only connected by virtue of the fact that petitioner and respondent's brother, who were never married, have a child together, and the interactions between the parties over five years were infrequent at most. (See also Matter of Parella v Freely, 90 AD3d 664, 665 [2d Dept 2011]) (no intimate relationship where respondent was dating the father of petitioner's child, parties only met in court proceedings and respondent had never met the child); Matter of Riedel v Vasquez, 88 AD3d 725, 727 [2d Dept 2011] (holding that the petitioner was not in an "intimate relationship" with the respondent, who was the estranged wife of the petitioner's live-in boyfriend, even though both had children with the same man)). Cases cited by petitioner's counsel are easily distinguished and do not require a different result. (See, e.g., Winston v. Edwards-Clarke, 127 AD3d 771 [2d Dept 2015] (intimate relationship was established by the fact that petitioner was living with respondent's children and their father who had custody of them, was acting as stepmother, and there was frequent contact between the parties in order to arrange visitation); see also, Royster v Murray, 157 AD3d 701 [2d Dept 2017] (no subject matter jurisdiction where the parties had no intimate relationship)).

Notably, none of these cases raises the issue of the alleged contact resulting in the filing of a family offense as a factor in determining the nature or extent of the relationship for purposes of Family Court jurisdiction.

Accordingly, based upon the infrequency of interactions and the duration of the relationship, it is evident that petitioner and respondent are not now, nor have they ever been in an "intimate relationship" within the meaning of the statute and the family offense petition against E.P. must be dismissed for lack of subject matter jurisdiction. (See Matter of Riedel v Vasquez, 88 AD3d 725, 727 [2d Dept 2011]; Matter of Seye v Lamar, 72 AD3d 975, 977 2d Dept [2010]; Matter of Mark W. v Damion W., 25 Misc 3d 1148 [Fam. Ct. Kings Co. 2009]; cf. Matter of Jose M. v Angel V., 99 AD3d 243 [2d Dept 2012]; Morales v Roman, 30 Misc 3d 297 [Fam. Ct. Kings Co. 2010]). ^[FN1]

For the reasons set forth herein, and those set forth in the Order of Dismissal, petitioner's cross-motion is likewise denied.

ACCORDINGLY, IT IS HEREBY

ORDERED that respondent E.P.'s motion to dismiss is hereby granted and the petition is dismissed; and it is hereby

ORDERED that the temporary order of protection is hereby vacated; and it is further

ORDERED that petitioner's cross-motion, which seeks a decree vacating the Order of Dismissal as "null and void" and to reinstate the petitions against the P respondents, is denied.