                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 22, 2015                    519494
________________________________

In the Matter of NAMI ARITA,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

ROBERT GOODMAN,
                    Respondent.
________________________________


Calendar Date:    September 11, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                              __________


      Mann Law Firm PC, Latham (Matthew J. Mann of counsel), for
appellant.

     Eric R. Gee, Delmar, for respondent.

                              __________


McCarthy, J.P.

      Appeal   from an order of the Family Court of Albany County
(Maney, J.),   entered July 10, 2014, which dismissed petitioner's
application,   in a proceeding pursuant to Family Ct Act article 8,
for an order   of protection.

      Petitioner and respondent lived together as roommates in an
apartment from August 2013 until April 2014, at which time
petitioner left the residence – approximately four months prior
to the expiration of the lease – as a result of alleged incidents
of domestic violence perpetrated upon her by respondent.
Petitioner then commenced the instant proceeding pursuant to
Family Ct Act article 8, alleging that respondent had committed
various family offenses, seeking an order of protection and
requesting an order pursuant to Real Property Law § 227-c
relieving her of her rent obligations under the lease. Upon
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learning that petitioner identified as a heterosexual female and
that respondent identified as a homosexual male, Family Court
granted respondent's oral motion to dismiss the petition upon its
finding that the parties did not have an intimate relationship
within the meaning of Family Ct Act § 812 (1) (e). The court
thereafter entered an order dismissing the petition on the
aforementioned basis and upon the additional conclusion that
petitioner had failed to allege any family offense. Petitioner
now appeals.

      Initially, petitioner's pleadings unambiguously allege that
respondent committed family offenses. Petitioner alleges that
respondent had destroyed items of her property, thrown items at
her, shoved her and threatened to, among other things, "kick
[her] ass." Such factual allegations were sufficient to allege,
at a minimum, the family offenses of menacing in the third degree
(see Family Ct Act § 812 [1]; Penal Law § 120.15), criminal
mischief in the fourth degree (see Family Ct Act § 812 [1]; Penal
Law § 145.00 [1]) and harassment in the second degree (see Family
Ct Act § 812 [1]; Penal Law § 240.26 [1]).

      Further, we agree with petitioner that her implicit
acknowledgment that she had not had a sexual relationship with
respondent did not justify Family Court ruling, as a matter of
law, that the two did not have an intimate relationship within
the meaning of Family Ct Act § 812 (1) (e). Initially, "the
governing rule of statutory construction is that courts are
obliged to interpret a statute to effectuate the intent of the
Legislature, and when the statutory language is clear and
unambiguous, it should be construed so as to give effect to the
plain meaning of the words used" (People v Brown, 25 NY3d 247,
250 [2015] [internal quotation marks, citations and brackets
omitted]). Turning to the relevant provision, Family Court's
subject matter jurisdiction includes family offense petitions
involving people who are or were previously engaged in an
"intimate relationship" (Family Ct Act § 812 [1] [e]). Factors
relevant to determining the existence of 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 Ct Act § 812 [1] [e]; see
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Matter of Samantha I. v Luis J., 122 AD3d 1090, 1091 [2014]).

      Considering these enumerated factors, the Legislature
unambiguously established that the phrase "intimate relationship"
is not limited to relationships that include sexual intimacy
(Family Ct Act § 812 [1] [e]; see generally Matter of R.M.W. v
G.M.M., 23 Misc 3d 713, 716 [Fam Ct, Nassau County 2009] [noting
that the Legislature provided little guidance as to the meaning
of intimate relationship except insofar as it specifically
described that such a relationship did not require sexual
intimacy]). Accordingly, Family Court's determination that the
lack of a previous sexual relationship with an alleged offender
was dispositive in establishing a lack of subject matter
jurisdiction is inconsistent with the plain meaning of Family Ct
Act § 812 (1) (e). Further, given Family Court's summary ruling,
the record is not sufficiently developed to permit us to
determine whether the parties have an intimate relationship
within the meaning of Family Court Act § 812 (1) (e); the mere
fact that the parties cohabited is insufficient to establish the
requisite intimate relationship given the multifactoral inquiry
prescribed by the Legislature, and petitioner was not permitted
to develop a record at a hearing.1 Therefore, we remit the
matter to Family Court for a hearing regarding subject matter
jurisdiction in which that court shall consider, among other
factors, those that the Legislature enumerated as relevant to the
determination of whether the parties had an intimate relationship
(see Matter of Schneider v Arata, 81 AD3d 652, 653 [2011]; see
e.g. Matter of Rollerson v New, 28 Misc 3d 663, 665-666 [Fam Ct,


    1
        We have previously noted that legislative history offers
some guidance regarding how a court should consider the role of
cohabitation in the assessment of intimate relationships. "[T]he
legislative history of the amendment adding subdivision (1) (e)
[to Family Ct Act § 812] indicates that the [L]egislature
intended to extend the statute's reach to . . . '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'" (Matter of Jessica D. v
Jeremy H., 77 AD3d 87, 89 [2010], quoting Letter from Assembly
Sponsor, Bill Jacket, L 2008, ch 326, at 9).
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Kings County 2010]).

     Egan Jr., Lynch and Clark, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, and matter remitted to the Family Court of Albany County
for further proceedings not inconsistent with this Court's
decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
