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 [*2]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 June 22, 2022 (see Matter of Raigosa v. Zafirakopoulos, 167 AD3d 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 NY3d 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 AD3d 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 AD3d 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 [*3]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. Moreover, even though petitioner at times refused to equate herself to a landlord, petitioner testified that she has a proceeding pending in landlord-tenant court against respondent. Petitioner also appeared to reveal that part of her incentive for filing the instant petition was because respondent purportedly stopped paying rent. Such testimony underscored the fact that petitioner and respondent's relationship is transactional and related to petitioner's business interests insofar as petitioner is primarily concerned with rent arrears allegedly owed by respondent and a desire for respondent's removal premised on non-payment. To be sure, petitioner even indicated to the court that she would be inclined to withdraw her petition if respondent vacated the apartment. Moreover, petitioner conceded that despite what she described as a de facto familial relationship with respondent, Bryant, and later petitioner, charged respondent $100 per week in rent during the entirety of the time that petitioner and respondent have resided together. On cross-examination, petitioner also stated that it angers her that respondent does not work despite his physical ailments, and that petitioner remains upset that respondent has not paid rent.

The court also finds petitioner's testimony incredible as a matter of law insofar as petitioner [*4]testified that although petitioner and respondent purportedly had daily interactions, the only interactions petitioner could recall were those about people that petitioner and respondent knew in common. Petitioner did not testify to more particularized conversations that her and respondent purportedly shared, as one might expect would be the case where it is claimed that parties supposedly spoke daily. Moreover, while petitioner attempted to impute a familial relationship between her and respondent by reference to Bryant's relationship with respondent, petitioner was never legally married to Bryant and Bryant's father had no connection to respondent's mother. Petitioner's reference to respondent referring to her as "auntie" is also incredible as a matter of law since respondent is admittedly older than petitioner, and petitioner provided no credible context as to why respondent would refer to her, even if only affectionately, as "auntie."

While there have been instances where an intimate relationship has been found where, like here, the parties were in a non-sexual relationship and resided together, this case does not fall within the ambit of the particularized determinations that were made in those prior proceedings. To be sure, this case is dissimilar from Arita v. Goodman, 132 AD3d 1108 (3rd Dept. 2015) where it was held that there may be an intimate relationship between roommates who were not involved in a sexual relationship. When reversing the Family Court's dismissal of a family offense petition and remitting the matter for a hearing on subject matter jurisdiction, the Appellate Division, Third Department, in Arita specifically held that the petitioner's implicit acknowledgment that she had not had a sexual relationship with the respondent did not justify the Family Court ruling, as a matter of law, that the parties did not have an intimate relationship within the meaning of FCA § 812(1)(e). That determination was predicated upon the lower court's erroneous determination that the lack of a previous sexual relationship with an alleged offender was, in and of itself, dispositive in establishing a lack of subject matter jurisdiction (id.). Notably, the court emphasized that the mere fact that the parties cohabitated is insufficient to establish the requisite intimate relationship given the multi-factorial inquiry prescribed by the Legislature (id.).

In contrast, here the court has considered the fact-specific assertions by both petitioner and respondent beyond the lack of a sexual relationship. Indeed, as indicated, respondent has offered credible testimony that petitioner and respondent have a business relationship, as evidenced by respondent paying $100 per week to reside in the same apartment as petitioner and by petitioner and respondent's limited interactions. On the other hand, the impression left on the court from petitioner's testimony is one of a tendency to overemphasize the nature and frequency of petitioner and respondent's interactions for the purpose of either collecting rent arrears or admonishing respondent for his purported failure to pay those arrears. Such a scenario places this matter less within the realm of Arita, and more within the purview of Leff v. Ryan, 134 AD3d 939 (2d Dept. 2015) where the Appellate Division, Second Department, held that the Family Court properly concluded that the relationship between the parties did not rise to the level of an intimate relationship since they were not related by consanguinity and they did not have a romantic relationship (id.). Considering the fact-specific testimony that the relationship between the parties in Leff was essentially a business arrangement, the Appellate Division, Second Department, held that the lower court properly determined that it lacked subject matter jurisdiction (contrast Kristina L. v. Elizabeth M., 156AD3d 1162 [3d Dept. 2017][Lower court's finding on an intimate relationship between platonic cohabitating friends affirmed where parties' relationship went beyond business component insofar as two women struck up a friendship, three months later began residing together, and had an arrangement where the petitioner would live with respondent rent-free in exchange for acting as a nanny to respondent's 7-year-old daughter and helping with household chores]).

As in Leff, here the parties have no direct relationship and are only connected by virtue of the fact that petitioner and the respondent reside in the same apartment. Though both petitioner and respondent have testified to their respective families generally knowing one another due to proximity within the same neighborhood, the court credits respondent's testimony over petitioner's with respect to the lack of frequent interactions between petitioner and respondent. To be sure, the interactions between the petitioner and the respondent over the approximately eight years that they have resided together, and the preceding years where they merely generally knew of one another, have been infrequent at most. The nature of the relationship is, in functional effect, a business relationship akin to that of a landlord and tenant (Leff, 134 AD3d 939, supra). The hearing testimony and arguments set forth in the parties' respective submissions to the court, do not support a finding that an intimate relationship exists here.

Accordingly, the petition is dismissed as petitioner and respondent do not have a qualifying relationship within the meaning of Family Court Act § 812(1).