Custody

Published on: January 6, 2016

Court Decides How Certain Taxes Should Be Paid

by Stephen Bilkis

On December 28, 1992, executed a will that made specific bequests to his wife, son and other family members. The will also left $16,500 to three charities and created a trust for the benefit of his wife and son. On December 17, 1997, the testator executed a trust that, at the time of his death, made pre-residuary distributions to family members and left $16,500 to the same three charities. The residuary went into a marital trust for Ruth. It is claimed that at this time the testator had assets of approximately $10,000,000.

On April 6, 2001, the testator created a second trust that included pre-residuary dispositions to his son and a marital trust for his wife. Upon her death, the greater of $15,000,000 or 25% of the trust principal would go to his son, with the remainder to two charitable lead trusts (CLTs) for the benefit of WCA Hospital, Jamestown Community College, and five public libraries. At that time, the testator was worth approximately $19,000,000.

Published on: January 4, 2016

Plaintiff Brings Motion to Dismiss Initial Complaint

by Stephen Bilkis

The motion of the defendants, RM and KM, by counsel, to dismiss the Summons & Information before the Court is determined as hereinafter provided.

The defendants, RM and KM, are the owners in fee of a residential home located at 88 Liberty Boulevard, within the Incorporated Village of Valley Stream, also known on the tax map of the County of Nassau as Section 37, Block 400, Lots 39 and 40. They are charged with failure to provide permits or certificates for a kitchen situated on the second floor of the premises, to wit: No Certificate of Occupancy for the two-family dwelling, violation of Sections 3211 and 3206 of the Village Zoning Code. The area is zoned for one-family dwellings or “R-1 Zone.”

Published on: October 11, 2015

Court Looks at Issue Regarding Personal Jurisdiction

by Stephen Bilkis

This is a proceeding for support pursuant to Article 4 of the Family Court Act. The clerk of the court mailed a summons to the respondent, directing him to appear for a hearing. No attempt at personal or substituted service was made prior to the mailing of the summons. The respondent has appeared specially and moved, pursuant to Section 3211(a) (8) of the Civil Practice Law and Rules, to dismiss the petition on the ground that service by mail in the first instance does not comply with the requirements of Section 427 of the Family Court Act and, therefore, this court lacks jurisdiction over the person of the respondent.

Section 427 provides as follows: ‘(a) Service of a summons and petition shall be made by delivery of a true copy thereof to the person summoned at least three days before the time stated therein for appearance. If so requested by the respondent or by a parent or other person legally responsible for his care, the court shall not proceed with the hearing or proceeding earlier than seven days after such service. (b) If after reasonable effort, personal service is not made, the court may at any stage in the proceedings make an order providing for substituted service in the manner provided for substituted service in civil process in courts of record. (c) In a proper case, service of a summons and petition under this section may be effected by mail.’

A reading of Section 427 clearly indicates that service is to be made personally, and only upon failure to effect the same is substituted service in the manner provided for substituted service in civil process in courts of record’ to be allowed.

Published on: October 11, 2015

Petitioner Challenges NY Financing Methods of Public Schools

by Stephen Bilkis

Within the framework of this litigation are found dual challenges to New York’s method of financing elementary and secondary public school education. Proceeding upon separate but related theories, two groups of plaintiffs each seek a judgment declaring that such method of educational financing violates provisions of the federal and state constitutions. The group of plaintiffs responsible for instituting the action as it was originally constituted is, for the sake of clarity and convenience, referred to as the “Original Plaintiffs.” This group is comprised of 27 school districts situated in 13 counties and 12 school children, represented by their parents or guardians, who are students in public elementary or secondary schools operated by 7 of the plaintiff school districts.

After an action had been instituted by the original plaintiffs, a second group of plaintiffs sought and was granted the right to intervene in that action. That group is referred to as the “Plaintiffs-Intervenors” and sometimes as the “Intervenors.” It includes the Boards of Education of the cities of New York, Rochester, Buffalo and Syracuse; the City of New York itself; certain officials of the so-called “Big Four” cities; the United Parents Associations of New York, Inc.; and 12 school children, represented by their parents or guardians, who are students in public schools operated by the named city school districts. The Board of Education of the City of Buffalo was included as one of the original plaintiffs and thus is a member of both groups of plaintiffs.

Published on: October 9, 2015

Petitioner Seeks Resolution Regardng Time Table for Election Law Cases

by Stephen Bilkis

It is well recognized that the time table for Election Law cases is extremely tight. Election proceedings have a preference over civil and criminal matters and thus the rules with regard to service are modified to reflect a method of service reasonably calculated to complete service in a timely fashion, but once ordered by the Court there must be strict compliance. In the instant proceeding, an ex-parte application was made to the Special II Justice for “So Ordered” subpoenas to be served on the witnesses and subscribing witnesses to the Respondent Petition, Volume 1, so that Petitioner could proceed with the case on the return date of the Order to Show Cause. Numerous people appeared pursuant to the subpoenas, however they reported to the courtroom of Justice also on the fourth floor, presumably because he had signed the subpoenas. The undersigned’s name appeared below the index number on the subpoena, however Justice’s part clerk apparently mistook the subpoenas as returnable in that part because another election law case is pending there. A call was made by someone in that part to Johnson’s counsel’s office rather than Petitioner’s and the people were told they were free to leave without ever having been referred to the undersigned’s part for the hearing. Both counsels were present before the undersigned during that morning, as the Order to Show Cause was returnable at 9:30 a.m., in this part.

It is conceded that respondent’s counsel brought those responding to the subpoena into a conference room to speak with them. An intern associated with Petitioner’s counsel was present, though no witness testified that he said or did anything. Respondent’s counsel admittedly unilaterally dismissed the people who answered the subpoena, without leave of the Court or authorization from Petitioner’s counsel.

On the record, respondent’s counsel advised the Court that he spoke to four people with regard to the subpoenas. He indicated that they showed him the subpoenas and he advised them that he “would make a motion to quash if they like and represent them for the purpose of the motion to quash because they were clearly not served properly.” At the time he was unaware of the Court Order setting forth the manner in which the subpoenas were to be served.

Published on: October 7, 2015

Petitioner Brings Lawsuit Regarding Licensing Issue

by Stephen Bilkis

In this summary license holdover proceeding commenced pursuant to Real Property Actions and Proceedings Law (“RPAPL”) § 713(7), petitioners seek to recover possession of the premises located at 173 Lake Drive, Wyandanch, New York (“the Subject Property”). Petitioners contend that the license of respondent to occupy the Subject Property has been revoked.

Most of the dispositive issues were undisputed. Petitioners are the owners of the Subject Property. In or about May or June 2007, Respondent moved into the Subject Property with her paramour petitioner’s son after learning she was pregnant with Nicholas. Mr. Robinson is the biological father of respondent. The parties acknowledged that there are no custody or child support matters pending.

Published on: October 1, 2015

Petitioner Claims that Jurisdiction is Fatally Defective

by Stephen Bilkis

The respondent appears specially, by counsel, contesting the jurisdiction of this court on the ground that the petition is fatally defective, in that it is made wholly on information and belief.

The petition charges the respondent with being a juvenile delinquent in that he committed certain acts in violation of the Penal Law as well as of a local municipal ordinance. The petitioner alleges that he is a person authorized to institute such a proceeding under article 7 of the Family Court Act by reason of the fact that he is one who suffered injury as a result of the said illegal acts of the respondent.

Published on: September 9, 2015

Court Discusses Condemnation Proceedings

by Stephen Bilkis

In condemnation proceedings, claimant appeals, as limited by its brief and on the ground of inadequacy, from so much of a partial final decree of the Supreme Court, Nassau County, dated May 2, 1979, as awarded compensation for the improvements on the condemned realty.

In 1954, appellant leased some 361/2 acres of beachfront property on the south shore of Long Island from Ovide de St. Aubin and Manlio Liccione. (Liccione divested himself of his interest in the property prior to this proceeding.) The parties stipulated that their respective interests in the improvements in the property, in the event of condemnation, would be 71.7% to appellant and 28.3% to St. Aubin. These figures were reversed with respect to their respective interests in the land itself. Appellant constructed on the property a large clubhouse for catering, cabanas, lockers, swimming pools, tennis, handball and basketball courts, and other facilities, at a cost of.$2.5 million. The business operation of these facilities was a failure, however, and in 1968, at which time the beach club facilities had a stipulated depreciated value of $1.38 million, the facilities were condemned by the respondent town. From the time of condemnation until the present, the town operated the premises, as had appellant, as catering and recreational facilities. Indeed, the town has not made any substantial structural changes in the improvements on the property. In 1977 it realized an income of approximately $400,000 from the operation of the facilities.

Published on: August 30, 2015

Husband and Wife Dispute Separate Property

by Stephen Bilkis

The petitioner and respondent were married on September 26, 1996, and were living together, with their children, in the marital residence located at 245 Hallman Avenue, Oceanside, New York 11572. A divorce proceeding was brought 8 years later in 2004, and the divorce was finalized by a judgment of divorce rendered in the Nassau County Supreme Court on September 8, 2008. The judgment of divorce regarded the marital domicile as a “separate property of [the husband].” Furthermore, it was adjudged that the wife must “remove from the former marital residence no later than 3 months following the entry of final judgment.” If the wife was unable to obtain suitable housing in the area, the judgment of divorce provided that respondent may “move for a reasonable extension of this deadline upon showing a bona fide diligent effort.” However, before the divorce was finalized, petitioner claims that respondent entered into possession of the marital residence by way of an oral license made on October 31, 2007, which expired on March 30, 2009. Thus, accordingly, on March 19, 2009, a 10-day notice to quit was served upon the respondent, requiring her to vacate from the subject premises by March 30, 2009. The respondent, however, has failed to surrender possession of the marital residence.

By motion dated July 12, 2009, the respondent, and now former wife of petitioner, seeks to dismiss the instant holdover proceeding instituted by her ex-husband. The respondent asserts three affirmative defenses in which she denies that an oral license agreement was entered into on October 31, 2007 and alleges that she is not a licensee, but a tenant, and thus, cannot be evicted in a summary proceeding. Additionally, respondent claims that she is entitled to a 30-day notice to quit, as opposed to a 10-day notice to quit. According to the affidavit submitted by the respondent, the respondent claims that the petition is defective in several respects: (1) The petitioner failed to serve respondent with a 30-day notice to vacate making the petition materially defective. (2) The petitioner alleged that respondent is a tenant, but served only a 10-day notice to quit. (3) In the alternative, the proper forum to decide all issues of possession is the Nassau County Supreme Court.

Published on: August 28, 2015

Court Decides Child Neglect Case

by Stephen Bilkis

The issue before this Court is whether a finding of neglect as to a newborn and the newborn’s older sibling may be based solely on the newborn’s positive toxicology for a controlled substance. We conclude that more than a positive toxicology is generally required for a neglect determination. We affirm in this case because, as the Appellate Division concluded, there is additional evidence in the record supporting the Family Court’s findings of neglect.

The appellant gave birth to her son in November 1990. Both mother and son tested positive for cocaine. After learning of the positive toxicologies, the Nassau County Department of Social Services (DSS) brought a petition pursuant to section 1022 of the Family Court Act to temporarily remove Dante from appellant’s care. Family Court conducted a hearing on the removal petition on November 21, 1990.

At the hearing, DSS presented evidence that the son was born with a positive toxicology for cocaine and a low birth weight. DSS also presented evidence that appellant had a history of cocaine abuse, had been admitted to several drug rehabilitation centers, and that appellant’s mother had custody of two of appellant’s children because appellant’s drug use rendered her incapable of caring for them. Appellant’s mother informed DSS that she had observed appellant high on cocaine in the last weeks of appellant’s pregnancy with the son. Appellant told DSS that she smoked a cigarette at a Halloween party at the end of her pregnancy which may have contained cocaine.