D. Birman, White Plains, NY, for appellant.
W. Szczesniak, White Plains, NY, for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
from (1) an order of fact-finding and disposition of the
Family Court, Westchester County (Mary Anne
Scattaretico-Naber, J.), entered September 26, 2016, and (2)
an order of that court entered May 12, 2017. The order of
fact-finding and disposition, after a hearing, found that
Jeanine Murray committed the family offenses of menacing in
the third degree and disorderly conduct, and directed that an
order of protection be entered in favor of the petitioner and
against Jeanine Murray for a period of six months. The order
denied Jeanine Murray's motion to settle the transcript
of the fact-finding hearing pursuant to CPLR 5525(c) by
striking the testimony of her brother, who is also the
petitioner's live-in boyfriend.
that the appeal from the order is dismissed as academic,
without costs and disbursements; and it is further, ORDERED
that the order of fact-finding and disposition is reversed,
on the law and the facts, without costs or disbursements, the
petition is denied, and the proceeding is dismissed.
petitioner is the live-in girlfriend of the appellant's
brother. The petitioner and the appellant live in the same
building, on different floors. The petitioner filed a family
offense petition against the appellant, alleging that she had
physically attacked and verbally threatened her. After a
fact-finding hearing, the Family Court determined that the
petitioner established by a preponderance of the evidence
that the appellant had committed the family offenses of
menacing in the third degree and disorderly conduct. The
court directed that a six-month order of protection be
entered in favor of the petitioner against the appellant. The
appellant thereafter moved pursuant to CPLR 5525(c) to settle
the hearing transcript by striking the testimony of her
brother, who testified during the trial in support of his own
family offense petition against the appellant. The court
denied the appellant's motion.
although the order of protection directed by the Family Court
in connection with the petitioner's family offense
petition expired by its own terms, the appeal from so much of
the order of fact-finding and disposition as directed that a
six-month order of protection be entered against the
appellant has not been rendered academic " given the
totality of the enduring legal and reputational consequences
of the contested order of protection'" (Matter
of Pierre v Dal, 142 A.D.3d 1021, 1022, quoting
Matter of Veronica P. v Radcliff A., 24 N.Y.3d 668,
673; see Matter of Sommella v Kimble, 150 A.D.3d
1018; Matter of Crenshaw v Thorpe-Crenshaw, 146
A.D.3d 951, 951-952).
Family Court is a court of limited jurisdiction, and
"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). "Pursuant to Family Court Act
§ 812(1), the Family Court's jurisdiction in family
offense proceedings is limited to certain prescribed criminal
acts that occur between spouses or former spouses, or between
parent and child or between members of the same family or
household'" (Matter of Seye v Lamar, 72
A.D.3d 975, 976 [emphasis omitted], quoting Family Ct Act
§ 812). "[M]embers of the same family or
household" 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[e]; see Matter of Seye v Lamar, 72
A.D.3d at 976). Expressly excluded from the ambit of
"intimate relationship" are "casual
acquaintance[s]" and "ordinary fraternization
between two individuals in business or social contexts"
(Family Ct Act § 812[e]). Beyond those delineated
exclusions, what qualifies as an intimate relationship within
the meaning of Family Court Act § 812(1)(e) is
determined on a case-by-case basis (see Matter of Seye v
Lamar, 72 A.D.3d at 976). Relevant factors include
"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[e]; see
Matter of Riedel v Vasquez, 88 A.D.3d 725, 726).
the parties have no direct relationship and are only
connected through a third party, who is the petitioner's
live-in boyfriend and the appellant's brother.
Additionally, the parties have never resided together and
their contact with one another has been purely by
happenstance, as they live in the same building. Accordingly,
they do not have an intimate relationship within the meaning
of Family Court Act § 812(1)(e).
the parties did not have an intimate relationship within the
meaning of Family Court Act § 812(1)(e), the Family
Court lacked subject matter jurisdiction to entertain the
family offense petition and to issue the order of protection
(see Matter of Parrella v Freely, 90 A.D.3d 664,
light of our determination, the appellant's remaining
contention with respect to the order of fact-finding and
disposition, and the appeal from the order ...