The Petition alleges that Respondent engaged in sexual intercourse and other sexual conduct without the consent of the Petitioner. The conduct alleged constitutes rape; however because rape is not a family offense (Family Court Act §812), so the Petition alleges that the rape and related conduct constitutes forcible touching and sexual misconduct, both of which are family offenses. Respondent has moved to dismiss the Petition. According to the notice of motion, Respondent has moved to dismiss the Petition under CPLR 3211 (a) (8). The supporting papers include an affirmation of Respondent’s counsel that contains legal argument (but see, 22 NYCRR 205.11 [b]) asserting “This Court lacks jurisdiction over the Respondent since the jurisdiction in this matter is predicated upon a familial connection which does not exist” (Affirmation of Respondent’s Counsel dated September 24, 2020 at 15). Neither Respondent’s motion nor anything else anything else Respondent has done asserts in any way that Respondent was not served with the papers or that Respondent lacks minimum contacts with New York State. Absent from Respondent’s presentation is anything suggesting that long arm jurisdiction is even involved because Respondent does not deny that Respondent is a New York State resident. Therefore, without a challenge to the service of process and without a challenge based on Respondent being a non-resident, a motion under CPLR 3211 (a) (8) must fail (see, e.g., Paterno v. Laser Spine Instit., 24 NY3d 370, 998 NYS2d 720 [2014]; Ruffin v. Lion Corp., 15 NY3d 578, 915 NYS2d 204 [2010]; Turner v. Sideris, ___ AD3d ___, 2020 NY Slip Op 05793 [2d Dept]; Nationstar Mortgage, LLC v. Balsamo, ___ AD3d ___, 2020 NY Slip Op 05515 [2d Dept]; Claerbaut v. East Long Island Hospital, 117 AD2d 772, 499 NYS2d 102 [2d Dept 1986]). The Court ordered a hearing on the motion, and at that hearing, both Petitioner and Respondent, through their respective attorneys focused on whether the family court has subject matter jurisdiction over the matter (CPLR 3211 [a] [2]). Much of the legal argument in Respondent’s counsel’s affirmation zeroes in on whether the relationship between the parties falls within the definition of members of the same family or household. Therefore, given that the non- moving party had notice of the substance of the requested relief and contested the application, Petitioner’s due process rights are not violated by this Court considering the motion under CPLR 3211 (a) (2) (AmBase Corp. v. Davis Polk & Wardwell, 8 NY3d 428, 834 NYS2d 705 [2007]; see, Matter of Village of Tarrytown v. Fry, 89 NY2d 714, 658 NYS2d 205 [1997]). The motion to dismiss properly does not challenge that the rape framed as forcible touching and sexual misconduct constitutes behavior that qualifies as a family offense as set forth in Family Court Act §812. The motion asserts that the Petitioner and Respondent are not members of the same family or household. In other words, the relationship between Petitioner and Respondent does not fall within a category set forth in Family Court Act §812 (a) — (e). The Court reviewed the motion papers, and heard testimony on October 6, 2020 (see, Matter of Raigosa v. Zafirakopoulos, 167 AD3d 748, 89 NYS3d 322 [2d Dept 2018]). 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]). They do not have a child in common (Family Court Act §812 [1] [d]). Moreover, Petitioner and Respondent are not related by consanguinity (Family Court Act §812 [1] [a]). Therefore, the two remaining bases on which a qualifying relationship may be found are affinity and intimate relationship. Affinity A relationship of affinity is ‘the relation that one spouse has to the blood relatives of the other spouse; relationship by marriage’ (Black’s Law Dictionary 70 [10th ed 2014]) (Matter of Arnold v. Arnold, 119 AD3d 938, 939, 989 NYS2d 879, 880 [2d Dept 2014]). 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 stepchild 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 stepparent (step two). Here, Petitioner’s mother is married to someone other than Petitioner’s biological father. Petitioner’s mother’s husband (hereafter, “Stepfather”) has a sister (hereafter, “Stepaunt”) who is married to Respondent (“Stepuncle”). Thus, unquestionably, Petitioner has an affinity relationship with Stepfather by authority of Arnoldwhich covers the first two steps in the relational chain. However, the third step of the relationship chain between Stepfather and Stepaunt is the subject of an anomaly among the Departments. In Matter of Bibeau v. Ackey, (56 AD3d 971, 869 NYS2d 244 [3d Dept 2008]), the Third Department held that a child has a relationship of affinity with the spouse of the sibling of the child’s parent. In Bibeau, the child’s mother’s (parent, step one) sister’s (aunt, step two) husband (non-blood uncle, step three) was the respondent in a petition brought on behalf of the child. In Matter of Rizzo v. Pravato, (170 AD3d 860, 96 NYS3d 121 [2d Dept 2019]), the Second Department held that no relationship of affinity exists between a child and the sibling of that child’s stepparent which as described above is step three. Applying Rizzoto this case, no relationship of affinity exists between Petitioner and the Stepaunt (step three), thereby breaking the chain of consanguinity and affinity connections necessary to establish a relationship of affinity between Petitioner and Respondent. The only difference between Bibeauand Rizzois that the relationship is through a parent (Bibeau) versus through a stepparent (Rizzo). In other words, in this case, had Petitioner’s mother’s (as opposed to Petitioner’s stepfather’s) sibling’s spouse been the respondent, then a relationship of affinity would exist. This Court is powerless to disregard Rizzobecause when the Departments conflict, and a Second Department case is on point, trial courts in this Department must follow the Second Department precedent (Mountain View Coach Lines v. Storms, 102 AD2d 663, 476 NYS2d 918 [2d Dept 1984]). Therefore, Respondent prevails on the motion to dismiss unless Petitioner and Respondent have an “intimate relationship” (Family Court Act §812 [e]). Rizzo stands for the proposition that even when an affinity relationship is absent, the courts must determine “whether persons are or have been in an ‘intimate relationship’ within the meaning of Family Court Act §812 (1) (e) [which is] a fact-specific determination which may require a hearing” (Rizzo, 170 AD3d at 861- 862, 96 NYS3d at 123). Intimate Relationship “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” (Family Court Act §812 [1] [e]). Nature of the Relationship Relative-like Relationship. The nature of the relationship is, in familial functional effect, uncle and niece. The hearing testimony was that the Petitioner visits at and spends family event time at the Respondent’s home. This family tree relationship support finding that an intimate relationship exists. Sexual Nature of the Relationship. Family Court Act §812 vests the family court with jurisdiction over certain sex offenses, so the face of the statute clearly contemplates sex, and not romance, as a factor to consider. The relationship between Petitioner and Respondent alleged in the Petition and described at the hearing is sexual. That the relationship has a sexually violent component, as alleged, does not make the relationship non-sexual; instead, the violence makes the relationship sexual and violent, not simply non-sexual. 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. That language does not mean to ignore a sexual component to a relationship. The Petition alleges that Petitioner and Respondent were kissing. Petitioner registered no objection to the kissing. When the Respondent intensified the parties sexual contact in the back of Respondent’s car in a dark parking lot sometime shortly after 4 a.m., Petitioner “told [Respondent] not to do that” (Petition at 2). When, as the Petition alleges, Respondent intensified the parties sexual contact and began having sexual intercourse with the Petitioner, who had no transportation save for the Respondent’s car, the sexual relationship became violent. The sexual nature of the relationship supports finding that this is an intimate relationship. Trusting Nature of the Relationship. Petitioner did not allege, and no hearing testimony suggests that Petitioner made, any objection to (a) leaving Petitioner’s car at Petitioner’s workplace at the 4:00 a.m. end of Petitioner’s work shift; (b) having Respondent drive with Petitioner at 4:00 a.m. from the workplace parking lot where Petitioner’s car was parked; (c) Respondent kissing Petitioner. Petitioner’s objections began when Respondent was “moving his hand down [Petitioner's] back” (Petition at 2). Something led the Respondent to arrive in Respondent’s car at Petitioner’s workplace at 4:00 a.m., when the Petitioner’s work shift ended. This Court finds that Respondent knew the Petitioner’s work schedule and arrived at the workplace on purpose intending to meet up with the Petitioner. That Respondent knew the Petitioner’s schedule demonstrates that this was not a “casual acquaintance” connection (Family Court Act §812 [1] [e]). To the contrary, the absence of objections and the Respondent’s awareness shows the trust-based nature of the relationship. Frequency of Interactions and Duration The parties interact and/or interacted with sufficient frequency to support a finding of an intimate relationship and have done so for a sufficient duration. Conclusion The purpose of the article 8 proceeding is “to stop the violence, end the family disruption and obtain protection” (Family Court Act §812 [2] [b]). This language helps illustrate that the degree of connection between petitioners and respondents should have some of the hallmarks of family relationships like trust. Based on the foregoing analysis of the various factors, this Court concludes that Petitioner has established that this Petitioner and this Respondent are members of the same family or household because they have or have had an intimate relationship as defined in Family Court Act §812 (1) (e). Therefore, the Respondent’s motion to dismiss is DENIED, and the case is set for a fact-finding hearing on the Petition a date to be determined among this Court and counsel. Dated: October 19, 2020
