IN RE: Rebecca S. ANSTEY (2005)

Appeal from an order of the Family Court of Broome County (Ray, J.), entered July 1, 2004, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 8, for an order of protection.

Petitioner, who is married to respondent's stepson, commenced this family offense proceeding against respondent alleging that he engaged in harassing behavior toward her.   Family Court initially issued a temporary order of protection.   Following a fact-finding and dispositional hearing, Family Court found that a family offense had been committed and issued a two-year order of protection.   Respondent now appeals.

 Initially, respondent contends that Family Court lacked subject matter jurisdiction and, accordingly, the petition must be dismissed. While this contention was not raised in Family Court, inasmuch as it implicates Family Court's subject matter jurisdiction, it is not waivable and we therefore will consider it (see Matter of Hassig v. Nicandri, 2 A.D.3d 1118, 1119, 768 N.Y.S.2d 691 [2003], lv. denied 2 N.Y.3d 701, 778 N.Y.S.2d 459, 810 N.E.2d 912 [2004] ).

 Here, respondent is alleged to have harassed his stepson's spouse, and the issue distills to whether petitioner and respondent, who do not share the same living quarters, may be considered “members of the same family or household” (Family Ct. Act § 812[1] ), which includes, insofar as is relevant here, “persons related by consanguinity or affinity” (Family Ct. Act § 812[1] [a] ).   A relationship by affinity is based upon marriage and has to do with the relationship one spouse has to the blood or adopted relatives of the other spouse (see Randolph v. Nationwide Mut. Fire Ins. Co., 242 A.D.2d 889, 890, 662 N.Y.S.2d 650 [1997];  see e.g. Wilmore v. State of Georgia, 268 Ga.App. 646, 602 S.E.2d 343 [2004];  People v. Armstrong, 212 Mich.App. 121, 536 N.W.2d 789 [1995];  Duke v. State of Alabama, 257 Ala. 339, 58 So.2d 764 [1952];  Zimmerer v. Prudential Ins. Co. of Am., 150 Neb. 351, 34 N.W.2d 750 [1948];  Clawson v. Ellis, 286 Ill. 81, 121 N.E. 242 [1918];  Simcoke v. Grand Lodge of A.O.U.W. of Iowa, 84 Iowa 383, 151 N.W. 8 [1892];  Black's Law Dictionary, 63, 1315 [8th ed. 2004] ).   Here, petitioner is not a blood relative of respondent's wife and, therefore, is not related to respondent by affinity.   Consequently, Family Court lacked subject matter jurisdiction to entertain the application for a protective order and the petition must be dismissed.   In light of this conclusion, we need not address the remaining arguments raised by respondent.

ORDERED that the order is reversed, on the law, without costs, and petition dismissed.

CREW III, J.

MERCURE, J.P., PETERS, CARPINELLO and KANE, JJ., concur.