KR v. FB
| Decision Date | 19 October 2020 |
| Docket Number | REDACTED |
| Citation | 70 Misc.3d 449,134 N.Y.S.3d 681 |
| Parties | In the Matter of a Proceeding Under Article 8 of the Family Court Act KR, Petitioner, v. FB, Respondent. |
| Court | New York County Court |
Heather Casale, Esq., Brighter Tomorrows, Inc., 1555 Sunrise Highway, Suite 1, Bay Shore, New York 11706, for Petitioner
Nanci Hirsch, Esq., PO Box 173, Commack, New York 11725-0173, for Respondent.
The Petition alleges that Respondent engaged in sexual intercourse and other sexual conduct without the consent of the Petitioner. The conduct alleged constitutes rape; however because rape is not a family offense ( Family Court Act § 812 ), so the Petition alleges that the rape and related conduct constitutes forcible touching and sexual misconduct, both of which are family offenses.
Respondent has moved to dismiss the Petition. According to the notice of motion, Respondent has moved to dismiss the Petition under CPLR 3211 (a) (8). The supporting papers include an affirmation of Respondent's counsel that contains legal argument (but see, 22 NYCRR 205.11 [b] ) asserting "This Court lacks jurisdiction over the Respondent since the jurisdiction in this matter is predicated upon a familial connection which does not exist" (Affirmation of Respondent's Counsel dated September 24, 2020 at ¶ 15).
Neither Respondent's motion nor anything else anything else Respondent has done asserts in any way that Respondent was not served with the papers or that Respondent lacks minimum contacts with New York State. Absent from Respondent's presentation is anything suggesting that long arm jurisdiction is even involved because Respondent does not deny that Respondent is a New York State resident. Therefore, without a challenge to the service of process and without a challenge based on Respondent being a non-resident, a motion under CPLR 3211 (a) (8) must fail (see , e.g., Paterno v. Laser Spine Instit. , 24 N.Y.3d 370, 998 N.Y.S.2d 720, 23 N.E.3d 988 [2014] ; Ruffin v. Lion Corp. , 15 N.Y.3d 578, 915 N.Y.S.2d 204, 940 N.E.2d 909 [2010] ; Turner v. Sideris , ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2020 N.Y. Slip Op. 05793, 2020 WL 6051208 [2d Dept.] ; Nationstar Mortgage, LLC v. Balsamo , ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2020 N.Y. Slip Op. 05515, 2020 WL 5929406 [2d Dept.] ; Claerbaut v. East Long Island Hospital , 117 A.D.2d 772, 499 N.Y.S.2d 102 [2d Dept. 1986] ).
The Court ordered a hearing on the motion, and at that hearing, both Petitioner and Respondent, through their respective attorneys focused on whether the family court has subject matter jurisdiction over the matter ( CPLR 3211 [a] [2] ). Much of the legal argument in Respondent's counsel's affirmation zeroes in on whether the relationship between the parties falls within the definition of members of the same family or household. Therefore, given that the non-moving party had notice of the substance of the requested relief and contested the application, Petitioner's due process rights are not violated by this Court considering the motion under CPLR 3211 (a) (2) ( AmBase Corp. v. Davis Polk & Wardwell , 8 N.Y.3d 428, 834 N.Y.S.2d 705, 866 N.E.2d 1033 [2007] ; see , Matter of Fry v. Village of Tarrytown , 89 N.Y.2d 714, 658 N.Y.S.2d 205, 680 N.E.2d 578 [1997] ).
The motion to dismiss properly does not challenge that the rape framed as forcible touching and sexual misconduct constitutes behavior that qualifies as a family offense as set forth in Family Court Act § 812. The motion asserts that the Petitioner and Respondent are not members of the same family or household. In other words, the relationship between Petitioner and Respondent does not fall within a category set forth in Family Court Act § 812 (a) — (e).
The Court reviewed the motion papers, and heard testimony on October 6, 2020 (see , Matter of Raigosa v. Zafirakopoulos , 167 A.D.3d 748, 89 N.YS.3d 322 [2d Dept. 2018] ).
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] ). They do not have a child in common ( Family Court Act § 812 [1] [d] ). Moreover, Petitioner and Respondent are not related by consanguinity ( Family Court Act § 812 [1] [a] ).
Therefore, the two remaining bases on which a qualifying relationship may be found are affinity and intimate relationship.
A relationship of affinity is ‘the relation that one spouse has to the blood relatives of the other spouse; relationship by marriage’ (Black's Law Dictionary 70 [10th ed. 2014] )
( Matter of Arnold v. Arnold , 119 A.D.3d 938, 939, 989 N.Y.S.2d 879, 880 [2d Dept. 2014] ). 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. [] ), The two steps are consanguinity between child and parent (step one) and affinity between the parent and the stepparent (step two).
Here, Petitioner's mother is married to someone other than Petitioner's biological father. Petitioner's mother's husband (hereafter, "Stepfather") has a sister (hereafter, "Stepaunt") who is married to Respondent ("Stepuncle"). Thus, unquestionably, Petitioner has an affinity relationship with Stepfather by authority of Arnold which covers the first two steps in the relational chain.
However, the third step of the relationship chain between Stepfather and Stepaunt is the subject of an anomaly among the Departments.
In Matter of Bibeau v. Ackey , 56 A.D.3d 971, 869 N.Y.S.2d 244 (3d Dept. 2008), the Third Department held that a child has a relationship of affinity with the spouse of the sibling of the child's parent. In Bibeau , the child's mother's (parent, step one) sister's (aunt, step two) husband (non-blood uncle, step three) was the respondent in a petition brought on behalf of the child.
In Matter of Rizzo v. Pravato , 170 A.D.3d 860, 96 N.Y.S.3d 121 [2d Dept. 2019], the Second Department held that no relationship of affinity exists between a child and the sibling of that child's stepparent which as described above is step three. Applying Rizzo to this case, no relationship of affinity exists between Petitioner and the Stepaunt (step three), thereby breaking the chain of consanguinity and affinity connections necessary to establish a relationship of affinity between Petitioner and Respondent.
The only difference between Bibeau and Rizzo is that the relationship is through a parent ( Bibeau ) versus through a stepparent ( Rizzo ). In other words, in this case, had Petitioner's mother's (as opposed to Petitioner's stepfather's) sibling's spouse been the respondent, then a relationship of affinity would exist.
This Court is powerless to disregard Rizzo because when the Departments conflict, and a Second Department case is on point, trial courts in this Department must follow the Second Department precedent ( Mountain View Coach Lines v. Storms , 102 A.D.2d 663, 476 N.Y.S.2d 918 [2d Dept. 1984] ).
Therefore, Respondent prevails on the motion to dismiss unless Petitioner and Respondent have an "intimate relationship" ( Family Court Act § 812 [e] ). Rizzo stands for the proposition that even when an affinity relationship is absent, the courts must determine "whether persons are or have been in an ‘intimate relationship’ within the meaning of Family Court Act § 812 (1) (e) [which is] a fact-specific determination which may require a hearing" ( Rizzo , 170 A.D.3d at 861-862, 96 N.Y.S.3d at 123 ).
"Factors the court may consider in determining whether a relationship is an ‘intimate relationship’ include, but are 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 Court Act § 812 [1] [e] ).
Relative-like Relationship.
The nature of the relationship is, in familial functional effect, uncle and niece. The hearing testimony was that the Petitioner visits at and spends family event time at the Respondent's home. This family tree relationship support finding that an intimate relationship exists.
Sexual Nature of the Relationship.
Family Court Act § 812 vests the family court with jurisdiction over certain sex offenses, so the face of the statute clearly contemplates sex, and not romance, as a factor to consider. The relationship between Petitioner and Respondent alleged in the Petition and described at the hearing is sexual. That the relationship has a sexually violent component, as alleged, does not make the relationship non-sexual; instead, the violence makes...
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