In the Matter of an Application for an Order of Protection pursuant to Article VIII of the Family Court Act, Shannon M., Petitioner,
Michael C., Respondent.
VanLeer & Greenberg Esqs., for the Petitioner Valerie VanLeer-Greenberg, Esq.
Michael C., Respondent pro se
PAULA J. HEPNER, A.J.S.C.
The Petitioner filed a family offense petition seeking an order of protection against the Respondent.  Because the Respondent has been to her home on numerous occasions, she did not file an application for a confidential address asserting that disclosure of her address or other identifying information would pose an unreasonable risk to her health or safety. A temporary order of protection was issued to her, ex parte, directing the Respondent to refrain from committing any family offenses against her. The order also directed the Respondent to refrain from communication or any other contact by mail, telephone, e-mail, voice-mail or other electronic means with the Petitioner.
The Petitioner appeared with an attorney on the return date. The Respondent appeared and requested an adjournment to speak with an attorney. On the next court date the Respondent appeared without counsel and requested the Court assign him an attorney but he did not meet the eligibility requirements. When the matter could not be settled by the judicial hearing officer, it was set down for a hearing before the undersigned. 
Trial began on February 23, 2011 and was continued on April 26, April 30 and May 22, 2012. The Petitioner testified in her own behalf and called as her witnesses Stephanie Miller, a friend whom she has known for 15 years, and Daniel Puissant, her downstairs tenant of 4 years. The Petitioner introduced two documents into evidence. At the close of the Petitioner's case, the Respondent made a prima facie motion to dismiss based upon the failure to establish an intimate relationship. The application was denied and the case proceeded to full trial on the allegations, as well as the issue of standing. The Respondent testified in his own behalf and presented the testimony of Zeno Wood, a college friend and roommate whom he has known for 27 years, and Marty Kirschner, a fellow artist whom he has known for 1½ years. The Respondent offered nine documents into evidence.
In summation, the Respondent maintained the matter should be dismissed, in the first instance, for lack of subject matter jurisdiction because the parties were involved in nothing more than a business transaction and there is no evidence to support a conclusion that this was an "intimate relationship" as that term is defined in the statute. Secondly, with regard to the three incidents alleged as a basis for obtaining an order of protection against him, although the Respondent admitted engaging in the conduct and acts charged in the petition, he denied that by doing so he committed any family offense. Since the Petitioner allegedly refused to pay him for the work he did pursuant to their contract, the Respondent maintained that he was doing nothing more than asserting his constitutional right to speak out publically against an injustice committed against him by an unscrupulous employer and that his right to resort to these measures as a means to collect from the Petitioner the money she owed him is protected speech.
The Petitioner maintained there is subject matter jurisdiction and the petition should not be dismissed as an "intimate relationship" is established based on their numerous, lengthy chats and e-mails and the three dates they had between January and mid-February 2010 before they entered into a business relationship. Decision was reserved in order to give the Court an opportunity to review evidence in the record and to consider the points and authorities cited by counsel in their summations.
FINDINGS OF FACT
The Court, having had the unique opportunity to hear the testimony of the parties and their witnesses, observe their demeanor, assess their veracity and review the documentary evidence admitted into evidence, now makes the following findings of fact based on the material, relevant, credible and competent evidence in the record.
Shannon M. described herself as an "executive recruiter for ad agencies and brand consultancies in New York" and is also is an adjunct professor in a graduate program in strategic communications. Michael C. described himself as a "carpenter woodworker who makes furniture and makes art that basically deals with the intersection of social action and aesthetics and social movements."
It is uncontroverted that the parties first met on January 1, 2010 when they exchanged messages on JDate® which bills itself as "the premier Jewish singles community online." The Petitioner testified the Respondent asked her out on a date on January 2, 2010 but she declined because she had a three month old son. She testified they had "lots of e-mails and G chats with "lots of flirty stuff."Over a period of six weeks beginning in January, the Petitioner testified the Respondent came over three times to hang out at her house where they sat on the couch and drank beer but she could not recall the dates and had no records, tape recordings or a video of the times she claimed they met. Because of her infant son, they never went out together nor did they have sex together. The Petitioner acknowledged their relationship changed to a business one after she learned the Respondent was a carpenter and she asked him to baby proof her stairs by repairing the "broken spindles and a shakey one" which he said he could do. The Petitioner testified that she contracted for these repairs with the Respondent on March 2, 2010. The Petitioner could not recall the time before March 2 that the Respondent had been to her house. She said the Respondent completed the work in June 2010. She paid him his fee minus $200.00 for one spindle he didn't do and they agreed that she would deduct that and he would keep the spindle.
The Respondent acknowledged that he was having electronic conversations with the Petitioner prior to January 2010. He testified he "lost interest in the Petitioner in a romantic way around December 6 or 7." Seconds after saying this, the Respondent admitted they "engaged in some flirty language" and advanced the time line saying his "actual interest in meeting [the Petitioner] ended January 7 of 2010." The Respondent did not deny the Petitioner's claim that he asked her out on January 2, 2010 which is consistent with this. The Respondent testified he told the Petitioner this when [he] bowed out of meeting her, " but the date of that meeting was never revealed. The Respondent denied that he hung out at the Petitioner's home on three occasions between January 2 and mid-February talking and drinking beer and denied that they dated. The Respondent maintained that he "met [the Petitioner] only one time on one evening in February [the 23rd] for the exclusive purpose of looking at her staircase which was in disrepair." The Respondent conceded that their conversations were friendly, and were established on a dating site" but he maintained that the relationship had never been "consumated with any kind of physical, same space, same time meeting in a real time and place until the actual event of [him] going to look at [the Petitioner's] staircase."
According to the Respondent they met a second time on March 2, 2012 when he brought the contract to the Petitioner for signature. The Respondent introduced into evidence a copy of the contract the Petitioner executed on March 2, 2010 authorizing the Respondent to perform the work. The Respondent testified in mid-April or May the Petitioner requested that he perform further work on the stairway, and do certain things in the kitchen and bathroom at an additional cost. While a second contract does not appear to have been executed, the Respondent introduced into evidence an e-mail from May 11, 2010 essentially confirming the work to be done and setting a price for the extra labor and supplies. The Petitioner was never questioned about whether she and the Respondent discussed this additional work or made a financial agreement to cover the cost. The Respondent testified that at all times he went to the Petitioner's house subsequent to March 2, 2010 it was for the ...