Articles Posted in Nassau

Upon this Writ of Habeas Corpus, petitioner Elizabeth Stuart Calvert, the Law Guardian of Relator, seeks his release upon the grounds that Family Court Judge improperly adjourned the dispositional hearing beyond the total twenty (20) day period authorized for “good cause” under FCA § 350.1, subd. 5. A New York Family Lawyer said that, on July 6, 1987, the Relator, under 16 years of age, was arrested inside premises 849 Bruckner Boulevard, Bronx, New York, by Police Officer Gwendolyn Guy of the 41st Precinct, Bronx County. Thereafter, a Bronx Family Lawyer said that, a juvenile delinquency petition, under FCA § 311.1 was filed charging Relator with acts which, if an adult, constitute the crimes of: Burglary in the Second and Third Degrees; Criminal Trespass in the Second Degree; Possession of Burglar’s Tools and Criminal Mischief in the Fourth Degree. Relator was present, with his father and step-mother, represented by the Legal Aid Society, which entered a denial and objected to his remand until July 10, 1987, by Family Court Judge.

A Bronx Order of Protection Lawyer said that, on July 10, 1987, Relator pleaded guilty to Criminal Trespass in the Second Degree before the Judge in full satisfaction of the entire FCA § 311.1 petition. The case was set down for a dispositional hearing on July 20, 1987, with the New York City Probation Department (“Probation”) directed to investigate and report (“I & R”) Relator’s background and circumstances, as well as explore placement by the adjourned date. In addition, the Court’s Mental Health Services (“MHS”) was ordered to conduct a mental health study and status examination and report to the Court by the July 20, 1987, adjourned date. In the interim, Relator was remanded to the New York City Commissioner of Juvenile Justice (“CJJ”), which referred Relator to a non-secure detention (“NSD”) facility.

A New York Custody Lawyer said that, At about 11:30 P.M. on July 19, 1987, Relator left the NSD facility without permission, returning to his father’s and cousin’s home (same building) the next morning, claiming he spent most of the night outdoors. Relator’s father then telephoned the Police Department, which returned Relator to CJJ in a secure detention facility (Spofford Juvenile Center) and Family Court custody that morning, being the adjourned date. On July 20, 1987, Relator and his father appeared before Family Court Judge, receiving reports that the Probation Department had not begun its I& R and MHS, had to re-schedule its July 15, 1987 examination because CJJ failed to produce Relator. Since Relator was then detained over ten (10) days, a “good cause” finding was required under FCA § 350.1, subd. 3(a). Judge Lynch found such “good cause” over the objections of Relator and counsel, based upon Relator’s absence from Court that very morning, which probably prevented the Probation interview. A dispositional hearing was now re-scheduled for July 30, 1987, by the Judge ordering, as did Judge Fields on July 10, 1987, the New York City agencies (Probation and MHS) to take the identical actions (I & R and mental health study and status examinations) and make the same reports to the Court. According to Petitioner, the Court, “remarked that failure to complete these reports would require the Realtor’s release on parole on the adjourned date.”

The case involves a repetitive issue concerning domestic violence. A New York Family Lawyer said the complaining witness/victim of domestic violence wishes to recant her testimony. The recantations are the product of many imperatives, not all of which serve the interests of the victim or justice.

Defendant moved for an order, pursuant to CPL § 410.20(1), modifying the condition of probation as to participation in continued therapy and treatment for domestic violence and for an order vacating and/or modifying the order of protection of the Court dated 3 February 2010. Defense counsel moved post-conviction and post-sentencing for the aforesaid reliefs on three separate dockets after the defendant in a negotiated plea was convicted and sentenced to forty-five (45) days in jail, three (3) years of probation and a “stay away” order of protection in favor of the complainant. More specifically, the defendant in this case pled guilty to one count of Penal law § 120.45(2), stalking in the fourth degree, another count of Penal law § 215.50(3), criminal contempt in the second degree while the count of Penal law § 240.30(1), aggravated harassment in the second degree was dismissed in satisfaction.

The defendant’s motion was denied in its entirety.

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The husband, age 59 at the time of trial, first came to the United States. He became a member of the Excavators Union. While he was in Italy for approximately eight months, he married his defendant wife. A New York Family Lawyer said they moved into a four room house he owned in Italy. The record is not clear whether the house was already fully built or was still incomplete. Doors, a new roof and a back house were added thereafter. The husband did some of the work and paid for the rest. Prior to the marriage the husband acquired an additional plot of land adjoining the property on which the house stood, with his own funds and in his own name. The parties’ first child was born in Italy. At the time of the child’s birth the husband had already returned to America. Over the next nine years, the husband made three trips to Italy for a total of two years. During those years, the parties had three more children, all born in Italy, twins were born in October 1964 and a son born in July 1968. The wife maintained the house and cared for the children with some assistance from her parents and his parents during those nine years. She cared for the animals, grew crops, and worked as a seamstress and supported herself and the children with limited assistance sent by her husband from America.

A New York Custody Lawyer said upon the insistence of the wife, the husband, by then an American citizen, brought his wife and four children to New York in December 1971. The family took up residence in a small Bronx apartment which the husband had rented.

Within two months of her arrival, the wife began to work as a seamstress, in a factory and at home. She maintained this occupation almost continuously from then until the time of trial, earning between $140 and $150 per week. A Nassau County Family Lawyer said she also maintained the household. The husband was then earning approximately $300 per week. He paid the rent for the apartment, and for a subsequent apartment to which the family moved, at the rate of $120 per month, as well as gas, electric and telephone bills. He made mortgage payments of approximately $140 per month on the parcels of unimproved land which he purchased. The income tax returns of the parties indicate a range of income for the family from $7,000 in 1971 to $21,000 in 1974. The extent to which the husband and the wife each provided funds for food, clothing, etc. is unclear from the record.

In this guardianship proceeding, respondent, an alleged incapacitated person (AIP), commenced the instant Art. 81 proceeding, via a self-petition, seeking to have a guardian appointed to manage his personal needs and his property. In his self-petition, respondent nominated his neighbor as his guardian. A New York Family Lawyer said that following the filing of the initial petition, the nephew of respondent, filed a cross-petition similarly seeking the appointment of a guardian for respondent but opposing the nomination of the neighbor. Subsequent to the commencement of the cross-petition, respondent withdrew his self-petition. Following several conferences, the instant matter was set down for a hearing, wherein several witnesses testified.

A New York Custody Lawyer said that based upon the credible and documentary evidence adduced at the hearing, the court determines that a cross-petitioner, has demonstrated by clear and convincing evidence that respondent is incapacitated. Specifically, the court determines that respondent is unable to provide for his personal needs and the management of his property management. Respondent cannot adequately understand and appreciate the nature and consequences of such inability and is likely to suffer harm if a guardian is not appointed. Though cross-petitioner has met his burden, the evidence reveals that respondent executed advance directives which address all of his personal needs and the management of his property. Thus, the appointment of a guardian is not warranted under the circumstances.

The issue to be resolved in this case is whether respondent should be placed under guardianship.

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Sometime in August 1987, a child (the subject child) who was then 5 years of age was brought by her mother, the plaintiff, to a certain hospital with complaints of constipation and occasional bloody stools. Defendant A, a doctor, examined her in the presence of another doctor, B, and suspected sexual abuse. A New York Family Lawyer said this was then reported to the Bureau of Child Welfare. Thereafter, the child was taken from her parents’ custody, remained in the hospital for two weeks, and was ultimately placed in the care of her maternal grandmother.

Consequently, the City filed a sexual abuse petition in Family Court of Bronx County. The Legal Aid Society, and its staff attorneys (the Legal Aid defendants), were assigned as the law guardian for the child. The parents denied involvement in any sexual abuse. On 15 December 1987, the court held a fact finding hearing. The law guardian took the position that the physical findings were inconsistent with the explanations offered by the parents and were consistent with sexual abuse of the child. The court found, by a preponderance of the credible evidence, that the child was sexually abused. On 23 June 1986, after a dispositional hearing, the court placed the child with the Department of Social Services for 18 months. Eventually the child was returned to her parents’ custody.

A New York Custody Lawyer said the parents sued, in their own right and as the parents and natural guardians of the subject child. On the first cause of action, on behalf of the subject child, the parents alleged legal and medical malpractice. They claimed that the Legal Aid defendants should have called C, also a doctor at the hospital, to testify at the fact finding hearing; that C had dealt with the parties and had concluded, without a physical examination of the child, that there was no sexual abuse; that C did testify at the dispositional hearing; that the hospital and its doctors committed medical malpractice by misdiagnosing the case and by submitting an erroneous report of sexual abuse; that the City and its attorneys, the defendants, prosecuted the matter in the Family Court to which they too failed to subpoena C. On the second cause of action, plaintiff mother filed it against her attorney in the Family Court, D. On the third cause of action, plaintiff father filed it against his attorney in the Family Court, E.

In an action by the guardian of the person and property of an incompetent (ward), the founder and former president and chief executive officer of defendant and third-party plaintiff, a not-for-profit corporation formed in 1968 to deliver various health-related and other services to the poor in the South Bronx. A New York Family Lawyer said the suit includes claims for, among other things, breach of contract, an accounting of deferred compensation deposited into a trust account for the ward, liquidated damages, and breach of corporation’s obligation to pay the ward’s medical expenses and retirement benefits.

According to a New York Custody Lawyer, the corporation answered the complaint, denying the material allegations therein, and commenced a third-party action against the ward’s Family Trust, established by the members of his family, in which it alleges, inter alia, that the ward engaged in various acts of self-dealing and malfeasance, including improper maintenance of time records and misuse of corporate funds and credit cards for certain personal expenses for hotels, trips and gifts. According to the corporation, the incompetent previously obtained substantial payments and benefits from it and now seeks additional compensation based on unverified, inaccurate and unreliable time records, as well as unauthorized benefits and insurance policies for himself and others. The corporation also seeks damages and/or an offset against all amounts sought by plaintiff, plus a return of prior payments made to, or on behalf of, the ward during the period he breached his fiduciary duties, including disgorgement of assets transferred by the ward to the family trust.

Thereafter, the corporation served a total of 13 subpoenas duces tecum on nonparties, including 3 nonparty movants, seeking, inter alia, production of all documents concerning the ward’s relationship to the nonparty movants, any business trips taken by him on behalf of the nonparty movants, and the employment or equity interest of any member of his family in the nonparty movants. A Nassau County Family Lawyer said the subpoenas also sought all documents regarding any equity interest of the corporation’s former comptroller, and the payment of salary, benefits and dividends to him in connection with his relationship to the nonparty movants. Finally, the subpoenas sought all documents concerning any contracts between the nonparty movants and the corporation.

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