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 COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. FOR THE FOREGOING REASONS THE RESPONDENT’S MOTION TO DISMISS IS DENIED: DECISION & ORDER on Respondent’s MOTION TO DISMISS INTRODUCTION Before the Court is Respondent __ (“Respondent”) Motion to Dismiss this Family Offense Petition (“Petition”) on the grounds that the petition fails to allege facts that give this Court subject matter jurisdiction pursuant to CPLR 3211(a)(2). See Notice of Motion (“Motion”), dated April 23, 2024. In her motion, Respondent alleges that this Court lacks subject matter jurisdiction pursuant to Family Court Act 812 (1)(e), in that the parties are not related by consanguinity or affinity, and as such the Court cannot find that there is the requisite “intimate relationship” between the parties as required by statute and case law. Petitioner’s attorney filed opposition to the Motion on April 29, 2024. See, Opposition to Motion to dismiss dated April 29, 2024. Petitioner argues that the facts, as alleged in her petition, and construed liberally as required by the law, assert an “intimate relationship” within the scope of Family Court Act 812 (1)(e). Petitioner asserts that the parties in this matter are more than casual acquaintances, and as such the Motion should be denied. PROCEDURAL HISTORY The instant Petition was filed on February 20, 2024. The Petitioner alleged in the Petition that the Respondent and she were in an intimate relationship during April and May of 2021, in that they were involved in a threesome, had sexual intercourse, and that the Petitioner was invited on dates by the Respondent, including dinner and naked yoga. On February 20, 2024, this Court found good cause to issue a temporary full stay away order of protection against the Respondent on behalf of the Petitioner. The Respondent was served with the instant Petition on February 22, 2024. The Respondent appeared before this Court, with counsel, on May 1, 2024. On May 1, 2024, the Respondent argued that the Petition should be dismissed due to lack of subject matter jurisdiction. On May 6, 2024, this matter was before the Court for oral arguments on the Motion. After oral argument the Court informed the parties that the Court would consider the following when making its decision on the Motion: The Petition, the Motion papers, including the annexed exhibits, attorney affirmation, and affidavit, as well as the Opposition papers, the annexed exhibits, attorney affirmation, and affidavit. The Court also informed the parties that the Court would consider the oral arguments made on the record on May 6, 2024. The parties were asked if there was any further evidence that they were seeking the Court to consider when making this determination. Neither party asked the Court to consider any other evidence. Legal Analysis “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Leon v. Martinez, 84 NY2d 83, 87-88 (2nd Dept. 1993) (citing CPLR 3026). When considering a motion to dismiss a family offense petition the “petition must be liberally construed, the facts alleged in the petition must be accepted as true, and the petitioner must be granted the benefit of every favorable inference.” Lashlee v. Lashlee, 145 A.D.3d 723, 724 (2nd Dept. 2016); Xin Li v. Ramos, 125 A.D.3d 681, 682 (2nd Dept. 2015). Family Court Act 812 (1)(e) outlines several factors that the court may consider in determining whether an intimate relationship exists. These factors include, but are not limited to: The nature and 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.” While the Family Court Act does not define an “intimate relationship” in Section 812(1)(e), it does exclude certain categories of interaction, namely casual acquaintances and ordinary social and business relationships. The Family Court Act also provides three factors that courts may consider when making this determination: the nature and type of relationship, regardless of whether it is sexual in nature, the frequency of interaction between the parties, and the duration of the relationship. In the instant matter, the relationship between the parties was clearly sexual in nature. Neither party denies that on at least two occasions they engaged in sexual intercourse. While the statute indicates that a sexual relationship is not necessary for courts to find that an “intimate relationship” exists, the statute is silent as to whether a sexual relationship alone constitutes an “intimate relationship.” The legislature expanded the definition of members of the same family or household in 2008, by including those who have been in an “intimate relationship.” By “radically expand[ing]” the definition of “ members of the same family or household” to include “persons…who are or have been in an intimate relationship” in 2008, the “Legislature intended to extend the statute’s reach to…(1) unrelated persons who are continually or at regular intervals living in the same household or who have in the past continually or at regular intervals lived in the same household and (2) persons who are or have been in an intimate or dating relationship regardless of whether such persons have lived together at any time.”(Emphasis added) See, Sullivan v. Sullivan, 2022 WL 2182441 (2022), quoting Matter of Jessica D. v. Jeremy H., 77 AD3d 87, 90 (3d Dept 2010); see also Matter of Mark W v. Damion W, 25 Misc 3d 1148, 1150 (Fam Ct, Kings County 2009) (“The legislative history of the 2008 Amendment indicates that the legislature intended to extend the protections of the Family Court Act primarily to dating couples who are not married or who do not share a child in common, and same-sex partners.” Matter of Amanda AA. v. Jennifer BB., Fam Ct, Tompkins County, Sept. 23, 2010, Brockway, J. at 2, available at http://decisions.courts.state.ny.us/fcas/fcas_docs/2010sep/54013902010101_1285342402608_fam.pdf.) The statutory language “regardless of whether the relationship is sexual in nature” means that a sexual relationship is not a necessary element of finding an intimate relationship (Family Ct Act 812 (1) (e), however, the language is not such it intends to completely ignore or discount a sexual relationship. Matter of KR v. FB, 70 Misc. 3d 449 (Fam Ct 2020). In making this decision, the Court also considered the frequency and duration of the parties’ relationship as proscribed by Family Court Act 812 (1)(e). Here, the parties’ relationship continued after their sexual relationship ended. According to the petition as well as the affidavit submitted by the Petitioner, the Petitioner remains in a relationship with the Respondent’s husband. Further, the Respondent’s child spent a week with the Petitioner in September of 2023, and three weeks with her from December of 2023 until January of 2024. See Petitioners Affidavit in Opposition dated April 29, 2024, and Petition dated February 19, 2024. Accordingly, the duration of the relationship between the parties in this matter is ongoing and not limited to a specific period surrounding their sexual relationship. Affording the Petitioner every possible favorable inference and determining whether the facts as alleged and argued fit within any cognizable legal theory, the alleged relationship may be considered an “intimate relationship” pursuant to Family Court Act 812 (1)(e). (See, Leon v. Martinez, 84 NY2d 83, 87-88 (2nd Dept. 1993)), in that the parties had a relationship between April and May of 2021, which included sexual intercourse on more than one occasion, as well as ongoing text communication during that period, indicating to the Court that the relationship was more than that of casual acquaintances. Further, the parties continue to be in a relationship with each other due to the Petitioner’s ongoing relationship with the Respondent’s husband and child. DECISION It is ORDERED the Respondent’s Motion to Dismiss __ is DENIED. Dated: May 14, 2024
