Coleman v. McKenzie
| Decision Date | 22 June 2022 |
| Docket Number | Docket No. O-6637-21 |
| Citation | 2022 NY Slip Op 50514 (U) |
| Parties | Tiffany Coleman, Petitioner, v. Anthony McKenzie, Respondent |
| Court | New York Family Court |
Unpublished Opinion
Ryan Besinque Esq. for Petitioner Tiffany Coleman.
Holden Thonhill Esq. for Respondent Anthony McKenzie.
A petition under Article 8 of the Family Court Act having been filed, and Petitioner Tiffany Coleman ("petitioner") having appeared with counsel Ryan Besinque, Esq., and Respondent Anthony McKenzie ("respondent") having appeared with counsel Holden Thornhill, Esq., and this matter having been set for a fact-finding hearing solely on the subject matter jurisdictional issue of whether a requisite relationship exists between the petitioner and respondent as occasioned by the filing of a motion by respondent, the court hereby makes the following findings of fact and conclusions of law.
Petitioner has filed a family offense petition, sworn to on December 30 2021, asking this court to award her a final Order of Protection against respondent. Once issue was joined and petitioner and respondent were both assigned counsel, the parties and their respective attorneys appeared before the court on March 9, 2022. On that date, respondent's counsel made an oral application to dismiss the petition for want of a qualifying relationship under Article 8 of the Family Court Act. The court requested that petitioner's application be made in writing.
Thereafter respondent filed a motion to dismiss the petition. In the motion, respondent argues that the petition should be dismissed because the Family Court lacks subject matter jurisdiction over this matter (CPLR § 3211 [a][2]). Respondent avers in his supporting papers, which include an affirmation of respondent's counsel and an affidavit from respondent, that this court lacks jurisdiction over respondent since the jurisdiction in this matter is predicated upon a familial connection which does not exist. In opposition to the motion, petitioner argues that petitioner and respondent are "like family," and therefore have a relationship that satisfies the requirements of Article 8 of the Family Court Act.
Because of the factual divergence between the positions espoused by petitioner and respondent, the court ordered a hearing on respondent's motion, and at that hearing, both petitioner and respondent testified, and through their counsel made arguments as to whether the relationship between the parties falls within the definition of members of the same family or household. The court has reviewed the motion papers, and heard testimony on June 14, 2022 and (see Matter of Raigosa v. Zafirakopoulos, 167 A.D.3d 748 [2d Dept. 2018]).
The Family Court is a court of limited jurisdiction and thus "cannot exercise powers beyond those granted to it by statute" (Matter of Johna M.S. v. Russell E.S. 10 N.Y.3d 364, 366 [2008]); see NY Const., art. VI § 13; Family Ct. Act § 115). Pursuant to Family Court Act § 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur "between spouses or former spouses, or between parent and child or between members of the same family or household" (Family Ct. Act § 812 [1]).
Here it is undisputed that petitioner and respondent are not legally married to one another (Family Court Act § 812 [1][b]), nor were they ever married (Family Court Act § 812 [1][c]). It is also undisputed that they do not have a child in common (Family Court Act § 812 [1][d]). Moreover, petitioner and respondent are not related by consanguinity and affinity (Family Court Act § 812 [1] [a]). Indeed, consanguinity exists where a petitioner and respondent are descended from the same ancestor (Family Court Act § 812 [1][a]). A relationship of affinity is "the relation that one has to the blood relatives of the other" (Black's Law Dictionary 70 [10th ed. 2014]; Matter of Arnold v. Arnold, 119 A.D.3d 938, 939 [2d Dept. 2014]). Hence, a relationship meeting Family Court Act § 812's requirements exists when the petitioner and respondent are linked by a combination of consanguinity and affinity, such as a child who is the blood relative of the child's parent (consanguinity) and therefore has a relationship by affinity with the parent's spouse (frequently called a step-parent) (id.). ["(W)hile spouses remain married, a step-child is related by affinity to a stepparent"]). The two steps are consanguinity between child and parent (step one) and affinity between the parent and the step-parent (step two). That type of relationship does not exist here.
Finally it is conceded by both petitioner and respondent that they were never in a sexual relationship (see Sonia S., v. Pedro Antonio S., 139 A.D.3d 546 [1st Dept. 2016]). However, on July 21, 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][emphasis added]). 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]). Beyond those 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), suggesting factors which the court may consider, including "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]). Therefore, the remaining basis on which a qualifying relationship may be found here is by virtue of an expanded reading of the definition of an "intimate relationship."
Here, through the motion and testimony elicited during the hearing, respondent stated that he has no biological relationship to petitioner. Rather, respondent states that respondent and petitioner's respective families were friendly by virtue of living in the same general neighborhood. Respondent further mentioned that petitioner and respondent "had little sustained interaction, but for incidental contact occasions in the neighborhood and sometimes at [petitioner's] aunt's home." In 2014, respondent testified that he became aware that petitioner's now deceased boyfriend, Tony Bryant ("Bryant"), had a room within an apartment available to rent. Respondent went on to testify that he rented that room from Bryant. Specifically, respondent elaborated that he occupied the living room within the apartment while Bryant and petitioner occupied two bedrooms. According to respondent, the three shared a kitchen and a bathroom within the apartment. Respondent further stated that he viewed Bryant as a "landlord." When Bryant died in 2019, respondent states that petitioner assumed the role of "landlord" while respondent remained a "tenant." Respondent also testified that petitioner and respondent never shared a meal together and did not speak to one another save for limited interactions regarding the payment of rent. In contrast to respondent's testimony, petitioner testified that although her and respondent have not shared meals together, respondent on occasion asked petitioner to taste food that he had prepared and the two conversed often. Petitioner further testified that petitioner and respondent had a close relationship because they resided together in an "1000 square foot apartment for the past 8 years," and because petitioner was "familiar with [respondent's] habits, comings and goings, and associations." Petitioner conceded, however, that her and respondent are not blood relatives, share no common church or school, and have never had a sexual relationship. Moreover, petitioner testified that the source of her original familiarity with respondent was "family cookouts" that were attended by upwards of fifty people and at which petitioner and respondent did not converse. At such gatherings, petitioner endorsed the suggestion that more than just family members were in attendance and that such gatherings occurred decades removed from the present. Furthermore, petitioner admitted that the "familial" connection that her and respondent purportedly shared was predicated upon a proximity within the same neighborhood that is shared by hundreds, if not thousands, of other people.
Notably on cross-examination, petitioner conceded that she did not celebrate holidays with respondent, that their relationship from 2014 to 2017 primarily involved the payment of rent, and that the instant family offense petition was only filed after respondent stopped paying rent. ...
To continue reading
Request your trial