Coleman v. McKenzie, Docket No. O-6637-21

CourtNew York Family Court
Writing for the CourtHasa A. Kingo, J.
Citation2022 NY Slip Op 50514 (U)
Docket NumberDocket No. O-6637-21
Decision Date22 June 2022
PartiesTiffany Coleman, Petitioner, v. Anthony McKenzie, Respondent

2022 NY Slip Op 50514(U)

Tiffany Coleman, Petitioner,
v.

Anthony McKenzie, Respondent

Docket No. O-6637-21

Family Court, New York County

June 22, 2022


Unpublished Opinion

Ryan Besinque Esq. for Petitioner Tiffany Coleman.

Holden Thonhill Esq. for Respondent Anthony McKenzie.

Hasa A. Kingo, J.

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.

BACKGROUND

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]).

DISCUSSION

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...

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