The following papers were read on this Motion: Notice of Motion, Affidavit, Affirmation, Exhibits Annexed 1 Respondent’s Affidavit and Affirmation in Opposition, Exhibits Annexed 2 Attorney for the Child’s Affirmation in Opposition, Exhibits Annexed 3 Reply Affidavit and Affirmation in Further Supper of the Motion to Submit 4 DECISION AND ORDER Upon the foregoing papers and for the following reasons, the motion by Respondent, J.V., for dismissal of the Petition, pursuant to CPLR 3211(a)(2), is granted and the pending proceeding is hereby dismissed. The Respondent, J.V. (hereinafter referred to as the “Respondent”), moves by Notice of Motion dated October 16, 2020 seeking, inter alia, an Order dismissing the Petitioner’s Family Offense Petition, dated June 23, 2020, pursuant to CPLR §3211(a)(2). Petitioner and the Attorney for the Child vehemently oppose the application. PROCEDURAL HISTORY On June 23, 2020, Petitioner, C.M.C. (hereinafter referred to as the “Petitioner”), filed a Family Petition, also dated June 23, 2020, against the Respondent seeking an order of protection in favor of Petitioner’s minor son, P (hereinafter referred to as the “Child”), based upon an incident which allegedly occurred on June 19, 2020. An ex parte Temporary Order of Protection was issued on behalf of the Child which ordered the Respondent to observe the following conditions of behavior: refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion, unlawful dissemination or publication of intimate image(s) or any criminal offense against [the Child]; refrain from any hazardous acts that create an unreasonable risk to the health, safety or welfare of [the Child]; and [Respondent] is not permitted to be alone with [the Child]. The Family Offense matter was made returnable on July 7, 2020, on which date the Respondent appeared with counsel and was arraigned. Respondent’s counsel made an oral application to dismiss the petition for lack of jurisdiction. Oral argument was heard and this Court referred the issue of jurisdiction to a hearing scheduled to commence on October 14, 2020. On July 7, 2020, the Court vacated the Temporary Order of Protection, and directed the parties, as well as the Attorney for Child, to submit Memoranda of Law in advance of the hearing. Thereafter, the parties and counsel agreed to have the Court decide the issue on papers, and a briefing schedule was set forth. The instant motion was fully briefed and marked fully submitted on November 5, 2020. BACKGROUND This Family Offense proceeding was commenced by the Petitioner on behalf of her son, the Child, against the Respondent, who is the fiancé of the Child’s father, Mr. P.C. to (hereinafter referred to as “P.C.”). It is unrefuted that the Respondent and P.C. became engaged in July of 2019, and their child together was born in September of 2019. P.C. then moved into the Respondent’s home. Respondent states that even though she and P.C. were residing together, her interaction with the Child did not change significantly as P.C. handled all of the Child’s activities while she handled her own daughter’s activities. She states that based upon her daughter’s schedule and the Child’s schedule, she and the Child were around each other only on Friday nights for dinner and late Saturday afternoon prior to him returning home to the Petitioner. She maintains that her interaction with the Child was minimal and that she was never alone with the Child. She states that P.C. was “always around if [the Child] and I were together” and she further states that there was “never co-parenting or de facto parenting roles between [the Child] and [her].” In further support of her application, Respondent brings to the Court’s attention instances of allegedly missed parenting time commencing in March of 2020 as the COVID-19 pandemic concerns grew. She argues that this “further highlights the lack of any relationship [she has] with [the Child] because there has been minimal opportunity for [them] to be together, and [they] do not have a relationship outside of in-person contact.” She maintains that she has not had any contact with the Child since Father’s Day weekend, June 19-21, 2020. Respondent’s Counsel notes that due to the impact on P.C.’s parenting time with the Child for most of this year, allegedly due to the Petitioner’s refusal to permit same, there is “virtually and literally no contact by telephone, text message, or otherwise” between the Child and the Respondent. In opposition, the Petitioner argues that the incident which brought on these proceedings occurred while the Child was in the care of the Respondent, and while P.C. was not home. Although she describes the incident in detail, the Court will disregard same as the only issue to be determined herein is jurisdiction. The one allegation that is arguably relevant to the instant decision is that P.C. was not home with the Child and the Respondent when the incident occurred, which the Respondent has not denied. The Petitioner further argues that the Respondent and Child are in an intimate relationship based upon Child Protective Services’ designation of the Respondent as a “parent substitute” in their report, which she annexes to her papers. She does not set forth any other specific dates or periods of time when the Child had contact with the Respondent. In further opposition of the Respondent’s application and in support of her position that there exists an intimate relationship between the Respondent and the Child, the Petitioner attaches purported text messages from P.C. wherein he refers to the Child as the Respondent’s stepson and states that the Petitioner “should be thankful for everything [the Respondent] does to help him.” The Petitioner further states that the Child has told her that the Respondent is always home, leaving him little time with his father. She further makes the conclusory argument that “the Respondent acts as a stepmother [the Child] in a manner no different than when [the Respondent and P.C.] do get married and she official [sic] carries the title ‘step-mother.’” Petitioner’s counsel argues that the Respondent stands in loco parentis stating that “in light of the fact that the Respondent lives with the [C]hild’s father, has a child in common with the [C]hild’s father, cares for the [C]hild when he is in her home and disciplines the [C]hild while caring for him, that [the Respondent], although not formally married to the [C]hild’s father, is acting as stepmother to the [C]hild.” Counsel states that P.C. refers to the Child as the Respondent’s stepson, and further argues that the mere act of formalizing the relationship between the Respondent and P.C. does not change the nature of the relationship between the Child and the Respondent, but rather merely changes the name. The Attorney for the Child (hereinafter the “AFC”) vehemently opposes the instant application and argues that the Respondent’s statements are contradicted by the statements and allegations P.C. sets forth in his enforcement petition currently pending before this Court. She specifically points out that in his petition for enforcement, P.C. asserts that the Respondent: 1) had a relationship with the Child; 2 ) acted in the role of a stepparent; 3) had spent time with the Child when P.C. was not present; and 4) was adored by the Respondent. The AFC further notes that although the Respondent claims to “be completely uninvolved in the Child’s activities, P.C. states in his enforcement petition that the Respondent was “able to secure [the Child's remote learning password] directly from the [Child's] teacher.” The AFC also notes that in a purported text message conversation, P.C. refers to the Child as the stepson of the Respondent. The AFC lists several examples from P.C.’s enforcement petition wherein he makes assertions which contradict the Respondent’s claims.” Specifically, P.C. alleges the following in his enforcement petition: “Contemporaneously, my relationship with my fiancé, [Respondent], became more serious and [the Child] began to happily integrate with [Respondent] and her daughter from a prior marriage.” “In November 2018 during a Visitation exchange, [Petitioner] slammed the door in my and [Respondent's] face…” “acting hateful towards me and making statements that [the Child] is ‘afraid’ of [Respondent], who he has always adored” “When [the Child] is in our [emphasis added by the AFC], he is himself again…” Respondent states that it is sheer hypocrisy on the part of the Petitioner to come before the Court and argue that the Child and the Respondent have an intimate relationship when the Petitioner’s own “communications make it abundantly clear that I serve no purpose and am insignificant in [the Child's] life. Respondent further argues that: P.C.’s reference to the [C]hild’s ‘siblings’ or his ‘sister’s [Respondent's daughter] birthday’ does not change the nature or the frequency of contact between [the Respondent] and [the Child]. In sum and substance, the Respondent argues that it is follows by logic that as the Petitioner withheld the Child from P.C. and since he was unable to effectuate his parenting time, “it is impossible for [her] to have the opportunity for contact with [the Child]. Respondent holds firmly that “P.C.’s stated wishes to have an inclusive family does not make it reality. It is far from reality as of this submission.” As to Petitioner’s allegation that the Respondent involves herself in the Child’s school and communicates with his teacher and guidance counselor, Respondent vehemently states that such allegations are false and she points out that the Petitioner has failed to submit any proof to support the claims. As to the Petitioner’s claims that an intimate relationship exists based upon the assumption that she “could” be present during P.C.’s parenting time with the Child, Respondent argues that even though she “could” be present for parenting now, especially since this Court vacated the temporary order of protection in July of 2020, she has not been since the date of the alleged incident, and her attorneys have represented on her behalf that this “no contact” arrangement can be a more permanent arrangement, which further supports her position that she and the Child do not have an “intimate” relationship. In sum, the Respondent reiterates that “[d]espite P.C.’s entitlement to parenting time with [the Child], [her] interaction with [the Child] was always, and remains, minimal…[and] [t]he status of [her] relationship with P.C. and [their] living arrangements do not change these facts.” She argues that “[b]ut for a few hours in June of 2020 surrounding the alleged incident, P.C. was around if [the Child] and [Respondent] were together…[t]here was never co-parenting or de facto parenting roles between [the Child and Respondent], nor do these roles exist between P.C. and [Respondent's daughter]. No such roles exist today.” Finally, Respondent states that the Petitioner and P.C. have been “embattled in litigation for many years over [the Child]…[and that she] is the latest victim of in Petitioner’s crusade. DECISION AND ORDER Pursuant to C.P.L.R. §3211(a)(2), a party may to move to dismiss an action for lack of subject matter jurisdiction over a cause of action. When deciding a motion to dismiss on the ground that court lacks subject matter jurisdiction, the complaint must be liberally construed to give it, if possible, such a construction as will bring its demand within the scope of jurisdiction of the court (Vidal Corp. v. Langley Aviation Corp., 1944, 48 N.Y.S.2d 824), and the court “must consider the affidavits submitted by both sides with respect thereto” (Spatt v. Feinberg, 1959, 18 Misc.2d 925, 183 N.Y.S.2d 659). Such motions to dismiss shall be granted if the “requisite allegations of any valid cause of action cognizable by the state courts cannot be fairly gathered from the all the averments” (Condon v. Associated Hosp. Sew., 287 N.Y. 411, 414 [1942]). “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. There is no dispute that subsections “a” through “d” of F.C.A. §812(1) do not apply to the Child and the Respondent, but rather the court must determine whether the allegations as contained in the pleadings, and upon due consideration of the affidavits submitted by the parties in support of their respective positions on this motion, establish an “intimate relationship”. Relevant to the case at bar, F.C.A. §812(1)(e), further 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’. “For a relationship to be ‘intimate’ within the meaning of the statute, it must be direct, not one that is based upon multiple degrees of separation or that exists only through a shared connection with a third party” (Matter of Mark W. v. Damion W., 25 Misc.3d 1148, 1151, 887 N.Y.S.2d 822 [NY Fam Ct 2009 (O'Shea, J.)]; see Matter of Perrella v. Freely, 90 A.D.3d 664, 665, 933 N.Y.S.2d 876 [2nd Dept. 2011] ). Moreover, it is well-settled that the Family Court need not hold a hearing, if “possessed [of] sufficient relevant information to allow it to make an informed determination as to whether the parties are or have been in an intimate relationship” (Matter of Seye v. Lamar, 72 A.D.3d 975, 900 N.Y.S.2d 112 [2nd Dept. 2010]; see Matter of Riedel v. Vásquez, 88 A.D.3d 725, 930 N.Y.S.2d 238 [2nd Dept. 2011] ). Respondent’s counsel, as well as the AFC cite to Reidel v. Vasquez, 88A.D.3d 725 (2nd Dept. 2011), however, the facts of that case are clearly distinguishable from the case at bar. In Reidel, the respondent was the estranged wife of the petitioner’s live-in boyfriend. The court in that matter determined that the parties had no direct relationship other that through a third party — the biological father of the parties’ respective child. In that case, unlike in the case at bar, the petitioner sought an order of protection against the respondent for herself and not on behalf of her child, as is the case here. Furthermore, in the Reidel case the court indicated that it was undisputed that the respondent’s contact with the petitioner and/or her children had been minimal. Here, while Respondent’s claim that she was “never” alone with the Child is belied by the fact that the alleged incident occurred while the Child was under the sole care and supervision of the Child and while P.C. was at work, this one specific instance alleged is not sufficient to establish frequency of contact. Petitioner has not, by any specific allegations or competent proof, refuted the Respondent’s claim that her interaction with the Child was minimal. All counsel cite to the Matter of Winston v. Edwards-Clarke (127 A.D.3d 771, 6 N.Y.S.3d 566 [2nd Dept. 2015]) which involved a family offense proceeding between a father’s fiancé and the mother of his children, who lived in the father’s household. The court in the Winston matter found that an intimate relationship was established by the fact that the fiancé was living with the mother’s children and their father, who had custody of them, and was acting as a stepmother, involved in frequent contacts and arranging all the children’s visits with the mother (id. at 773, 6 N.Y.S.3d 566). Similarly, in the Matter of José M. v. Angel V., (99 A.D.3d 243, 951 N.Y.S.2d 195 [2nd Dept. 2012] ), the father commenced a family offense proceeding on behalf of his daughter against the mother’s live-in boyfriend, who acted as an abusive stepfather and with whom the father had contact during visitations. Unlike here, both of these cases involved quasi-familiar and frequent interactions between the parties. Here, the Petitioner is the custodial parent of the Child; and not only are the Respondent and P.C. not married, but the Petitioner has not proven that beyond the one incident, the Respondent ever had a stepmother or stepparent relationship with the Child. Petitioner’s wholly unsupported statements and reliance on statements made by P.C. are insufficient. The Petitioner’s argument that the classification and designation of the Respondent by CPS as a “parent substitute” does not serve as a basis or even prima facie evidence that the designation is legally accurate or relevant. Furthermore, the report that the Petitioner annexed to her papers clearly states on the top of each page that material is “CONFIDENTIAL INFORMATION. AUTHORIZED PERSONNEL ONLY”. Whether Petitioner’s possession and/or use of this report is appropriate or permissible is not the subject of this decision, however, the material is nonetheless not dispositive in the Court’s analysis of whether the Respondent and the Child have an “intimate relationship”. The Court has carefully considered the parties’ respective submissions, as well as those of the Attorney for the Child, and concludes that the Petitioner has not established, by any competent evidence or by any specific allegation, that an “intimate relationship” exists between the Child and the Respondent or even the Petitioner and the Respondent. Having relied almost exclusively on the written statement of P.C. as contained in his petition for enforcement against the Petitioner in a separate proceeding is insufficient. The Court therefore finds that the contact between the Respondent and the Child is insufficient to establish the existence of an “intimate relationship.” Accordingly, Motion Sequence 001 is GRANTED, and the Petition is hereby dismissed for lack of jurisdiction. Accordingly, it is hereby ORDERED, that the instant motion is GRANTED, and the Petition is hereby dismissed. 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. Order mailed on [specify date(s) and to whom mailed: Dated: January 7, 2021
