The following papers were read on this Motion: Notice of Motion, Affirmation, Amended Petition, Exhibit(s) Annexed 1 Response (Respondent’s Counsel Affirmation) 2 Affirmation of the Attorney for the Children, Exhibit(s) Annexed 3 Reply Affirmation, Family Offense Petition dated June 5, 2020 4 DECISION AND ORDER ON MOTION The Petitioner, A.S., on his own behalf and on behalf of his children, to wit: A.S., born June 27, 2012; and M.S., born March, 7 2009 (collectively referred to as the “Children”), moves by Notice of Motion dated May 18, 2020, seeking, inter alia, an order entering a stay away order of protection precluding the Respondent or any other third-party on Respondent’s behalf from being in the presence of Petitioner of the Children, and from harassing, intimidating or committing any intimidating act or threat or crime against Petitioner or the Children, and directing Respondent to stay away from the home, school and place of employment of Petitioner, as well as directing Respondent to stay away from the home, school and religious school of the Children. PROCEDERUAL BACKGROUND On April 27, 2020, the Petitioner filed a Family Offense Petition seeking an order of protection for himself as well as the Children (hereinafter referred to as the “Petition”). On that date, the Court issued an ex parte temporary order of protection directing the Respondent to “[r]efrain from any hazardous acts that create an unreasonable risk to the health, safety or welfare of [the Children]” (hereinafter referred to as the “ TOP”). The TOP remains in effect as of the date of this order. On May 8, 2020, the Petitioner, by counsel, made an oral application on the record seeking to expand the scope of the TOP to include those sought in the instant motion. The Court denied the application without prejudice based upon lack of jurisdiction over the relationship between the Petitioner and the Respondent. Notwithstanding, the Court granted the Petitioner leave to amend the Petition, which amended petition was dated and filed on May 15, 2020 (hereinafter referred to as the “Amended Petition”). The following is a brief summary of the allegations contained in the Amended Petition which relate directly to the Petitioner: On May 14, 2020, Respondent called the Petitioner seventy-six (76) times from 9:40 p.m. to 10:58 p.m. When Petitioner answered approximately twenty (20) of the calls, the Respondent did not speak and there was music being played in the background. On May 5, 2020 at approximately 5:00 p.m., while the Petitioner was at the Respondent’s residence picking up the Children for his parenting time, the Respondent moved his car behind the Petitioner’s and blocked him into the driveway of the apartment complex. It was only after the police arrived that the Respondent moved his vehicle. On April 9, 2020 at approximately 5:00 p.m. and on April 23, 2020 at approximately 5:00 p.m. at the Nassau County Police Department, 6th Precinct, the Respondent videotaped the Petitioner as he picked up the children. Respondent called out to the Petitioner in an insulting manner attempting to start an argument in front of the children. On April 28, 2020 at approximately 5:00 p.m. at the Nassau County Police Department, 6th Precinct, the Respondent videotaped the Petitioner as he picked up the children. Respondent then grabbed the Children and pushed them behind him. Between December 20, 2019 and January 16, 2020, the Respondent repeatedly texted the Petitioner, which the Petitioner found to be disturbing, threatening and intimidating. On January 12, 2020, at approximately 5:00 p.m. at the Nassau County Police Department, 6th Precinct, the Respondent videotaped the Petitioner as he picked up the children. The Respondent threw a support check payment check (previously given by the Petitioner to the Petitioner’s ex-wife) at the Petitioner’s head while the Petitioner was sitting in his car and yelled “we don’t need it.” The Petitioner filed another Family Offense Petition on June 5, 2020 seeking an order of protection on his behalf based upon allegations set forth therein (hereinafter referred to as the “June Petition”), which was dismissed by the Court on June 8, 2020 without prejudice for lack of jurisdiction. The June Petition was subsequently reinstated pursuant to an order to show cause signed by this court on June 10, 2020. In the June Petition, Petitioner states that on June 4, 2020 at 5:00 p.m., he picked up the Children from their home for his parenting time and drove to his brother’s office on Lumbar Road in Roslyn, New York. Petitioner then alleges that at approximately 6:00 p.m. he observed the Respondent in a black Dodge SUV videotaping the Petitioner and the Children, and that the vehicle remained there until approximately 7:15 p.m. POINTS OF COUNSEL In support of the instant application, the Petitioner’s Attorney argues that the allegations contained in the Amended Petition demonstrate that, at a minimum, a temporary order of protection as set forth in the notice of motion is warranted. Counsel further argues that the circumstances in this matter, under which jurisdiction is sought for an order of protection in favor of the Petitioner, falls within the “intimate relationship” language of the Family Court Act §812(1)(e), which includes, but is not limited to, the nature of the relationship and the frequency of interaction between the parties. Counsel states that, it is not disputed that the Respondent is married to Petitioner’s ex-wife and stands in loco parentis to the Children when they are in his custody by virtue of his relationship to Petitioner’s ex-wife and his residence with Petitioner’s ex-wife. Counsel therefore concludes that as such, Respondent acts in a stepparent capacity to the Children. Counsel further contends that the Respondent’s relationship with the Petitioner is broad and involves numerous interactions related to the Children, including visitation and exchanges at pick-ups and drop-offs, and that Respondent has imposed himself upon numerous matters related to the Children, including matters related to the Children’s schooling, the Children’s Hebrew school, support and expenses for the Children, as well as the Children’s upbringing in various contexts. In further support of the instant application, Petitioner’s Counsel cites Winston v. Edwards-Clarke, 127 A.D.3d 771 (2nd Dept. 2015). In Winston, the Second Department, upheld the issuance of an order of protection finding jurisdiction under almost identical circumstances to those at bar. It is Petitioner’s Counsel’s position that in the case at bar, the case is even stronger in favor of the Petitioner herein, a fortiori, given the fact that Respondent is undisputedly married to the Petitioner’s ex-wife, as opposed to being a mere fiancé as in the Winston matter. Lastly, counsel argues that the allegations set forth in the Amended Petition, which include harassing telephone calls, harassing misconduct and disturbing behavior to Petitioner, the Children and others, all without any legitimacy whatsoever, warrant that a temporary order of protection be issued in favor of the petitioner, pending the final determination of this case. In opposition to Petitioner’s motion, Respondent’s Counsel has submitted an Affirmation wherein he argues that the issue of jurisdiction, and all other issues in this case, should be set down for trial so that the court can determine the facts of this case and make appropriate findings. Counsel contends that it is not appropriate to modify the current order of protection against the Respondent prior to a hearing. It is noteworthy, that the Respondent has not submitted an affidavit in response, nor has Counsel disputed or refuted or even mentioned any of the factual allegations contained in the Amended Petition or the June Petition. The Attorney for the Children (hereinafter the “AFC”) also submitted answering papers to Petitioner’s instant motion. The AFC states in his affirmation that he does not believe that the issuance of a full stay away order of protection precluding the Respondent from being in the presence of the Children is necessary or warranted. The AFC concedes that the relief sought in the instant motion is not identical nor duplicative of the relief granted by the Hon. Stacey Bennett, A.J.S.C. pursuant to an order dated May 6, 2020. While the AFC indicates that he understands why this application was made by the Petitioner, he argues that there are already protections for the Children against the Respondent in place pursuant to the Supreme Court order. Furthermore, he states that the Children have not requested any further protection at this juncture. As to the other relief requested; no position is taken by the children. In reply, Petitioner’s Counsel states that the Respondent’s misconduct has continued unabated since the Petition was filed which lead to the filing of the June Petition, wherein the Petitioner alleges that the Respondent followed him, and videotaped him and his children during Petitioner’s recent visitation with the Children. Counsel argues that it should be obvious that this type of stalking behavior will never cease unless an order of protection is issued, and that behavior such as that alleged in the June Petition serves as further evidence that Respondent’s misbehavior, if left unchecked, will undoubtedly continue. In response to the AFC’s answering papers, Petitioner’s Counsel argues that the AFC’s opinion does not set forth any basis in fact for his contention that no expansion of the already existing order of protection is warranted. Petitioner’s Counsel further argues that the AFC did not address the specific and detailed allegations set forth by the Petitioner that the Respondent physically hurt one of the Children on one occasion, brought the Children to a place where he started a physical altercation on another occasion, blocked Petitioner with his car (in front of the Children), and acted in a disruptive matter on numerous occasions in the Children’s presence, including videotaping them. It is Counsel’s position that the foregoing creates a substantial basis to expand the existing order of protection, which directs the respondent to “refrain from hazardous acts” against the children, to at a minimum a “do not harass” order protection. As for the AFC’s next contention, Petitioner’s counsel argues that the existence of another court order, to wit: the Supreme Court order, is irrelevant as such contention does not, and cannot, address the request of the Petitioner seeking an order of protection for his own behalf against the Respondent. In response to the Respondent’s answering papers, Petitioner’s Counsel argues that the Respondent offers no legitimate reason why the Petitioner’s motion should not be granted to amend the TOP to include a full “stay away” provision on the Petitioner’s behalf against the Respondent. Counsel further argues that it is significant that the Respondent did not address the law set forth in the moving papers, which should be taken as an admission of the meritorious nature of Petitioner’s legal position. Petitioner’s counsel contends that there is no need for a hearing on the issue of the relationship as the Respondent has not specifically contested it, and therefore the Court can, and should, issue an order of protection to protect the Petitioner. Petitioner’s Counsel concludes with the argument that there is no reason whatsoever why the Respondent should be anywhere in the Petitioner’s presence nor is there any reason why the Petitioner should be subject to Respondent’s outrageous, improper and harassing behavior, which according to Counsel has continued unabated. DECISION AND ORDER “The Family Court is a court of limited jurisdiction, constrained to exercise only those powers conferred upon it by the New York Constitution or by statute” (Cambre v. Kirton, 130 A.D.3d 926 [2nd Dept. 2015], citing Matter of H.M. v. E.T., 14 N.Y.3d 521, 526 [210]). Family Court Act §812 prescribes the acts and types of relationships over which the family court has jurisdiction. Relevant to the case at bar, FCA §812(1)(e), establishes jurisdiction over “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. 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. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”. Here, it is not alleged that the Petitioner and the Respondent have ever lived together, nor are they related by blood or marriage. It is, however, unrefuted that the Respondent resides with the Petitioner’s children as stepfather and stands in loco parentis. It is further unrefuted that the Respondent has had frequent and consistent contact with the Petitioner regarding matters related to the Children. Accordingly, the unrefuted allegations in this matter are sufficient to establish an “intimate relationship” between the Petitioner (the Children’s parent) and the Respondent (the Children’s stepparent) (see, Winston v. Edwards-Clarke, 127 A.D.3d at 773). Now, having established subject matter jurisdiction, the Court now considers the allegations contained in the Amended Petition and the June Petition and finds that the unrefuted allegations establish a sufficient prima facie case to warrant the modification of the TOP. The Amended Petition contains a litany of allegations, which if taken on their face, rise to the level of being harassing, intimidating and disturbing. The allegations include excessive telephone calls from the Respondent to the Petitioner, dangerous physical contact and disturbing behavior to the Petitioner by the Respondent. Accordingly, Petitioner’s motion is GRANTED to the extent more specifically set forth herein below. Based upon the foregoing, it is hereby ordered that the TOP shall be modified so as to include the following provisions: the Respondent shall stay away from the Petitioner wherever he may be, a “general refrain” as to the Petitioner and the Children, a “refrain from communication” either directly or indirectly with the Petitioner, and a “refrain from hazardous acts” with respect to the Children. The modified temporary order of protection shall be issued by separate order of the Court and the Court shall further direct service of such modified temporary order of protection upon the Respondent by the Nassau County Sheriff. The Court will mail copies of the modified temporary order of protection to all counsel and the Petitioner. Counsel in this matter are directed to electronically appear before this Court in the Virtual Courtroom on September 24, 2020 at 11:30 a.m. for an attorney-only, off the record pre-hearing conference to select dates for a fact-finding hearing. Now it is hereby, ORDERED, that Petitioner’s motion is GRANTED as more specifically set forth herein; and it is further ORDERED, the modified temporary order of protection shall be issued by separate order of the Court and the Court shall further direct service of such modified temporary order of protection upon the Respondent by the Nassau County Sheriff; and it is further ORDERED, the Clerk of the Court will mail copies of the modified temporary order of protection to all counsel and the Petitioner; and it is further PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. Dated: September 14, 2020
