Custody

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 Petitioners contend that the license of respondent to occupy the Subject Property has been revoked.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.

Published on: July 17, 2015

Defendant Contends The Court Has Insufficient Evidence

by Stephen Bilkis

On July 1, 2005, after spending several hours in a bar in Manhattan, at which he consumed at least six beers, the defendant attended a friend’s party in Merrick in Nassau County. He arrived at the party, which consisted of a small gathering of his friends, between 11 P.M. and midnight. The house where the party was being held was approximately a five-minute drive from the Meadowbrook State Parkway.

At the party, the defendant was seen consuming several alcoholic drinks. Two of the defendant’s friends who were at the party described the defendant as intoxicated or “buzzed.” However, neither one observed the defendant stumbling or staggering while he was dancing, nor was he observed to be slurring his words.

Published on: July 13, 2015

Plaintiff Seeks Permanent Injunction

by Stephen Bilkis

For a number of years the defendant has operated a junk yard on property located on U.S. Route 20, Town of Nassau in Rensselaer County. Over the years there have been disagreements between the Town and the petitioner with regard to the petitioner’s operation of the junk yard and the Town’s efforts to regulate it. In August 2002 the Town commenced an action against the petitioner in an attempt to enforce Town of Nassau Local Law No. 1 [1989] with regard to the licensing and regulation of junk yards. That action was ultimately resolved when the parties entered into a stipulation which was so-ordered by the undersigned on September 9, 2002. In May 2003 the Town of Nassau commenced the instant action against the defendant.

The action was temporarily halted when the parties, on November 8, 2004. entered into a Stipulation of Settlement which was so-ordered by the Court. That agreement, arrived at after much litigation and negotiation, memorialized a number of commitments on defendant’s part regarding the manner in which he would operate and maintain the junk yard. By reason of defendant’s violations of the November 8, 2004 Stipulation of Settlement the plaintiff, in June 2006, commenced an enforcement proceeding seeking to permanently enjoin the operation of the junk yard and for liquidated damages. On June 8, 2007 the Court, after a hearing, issued a permanent injunction prohibiting the defendant from further operation of the junk yard and awarding plaintiff liquidated damages.

Published on: July 9, 2015

Petitioner Brings Action for Preliminary Injuction

by Stephen Bilkis

This is an application for a preliminary injunction. The proceeding was commenced by Petitioner by order to show cause and petition seeking a judgment declaring him to be the owner of real property located at Merrick, New York (the Property), or imposing a constructive trust. The order to show cause, which was issued on November 9, 2007, contained a temporary restraining order restraining respondent and/or her agents from transferring, selling or otherwise encumbering the Property and from terminating the tenancy of a brokerage) pending the return date of the order to show cause. Jurisdiction is complete.

On December 5, 2007, the court held a hearing on whether a preliminary injunction should issue. The hearing continued on December 6, 2007 and concluded the following day.

Published on: July 5, 2015

Defendant Challenges the Legality of a Search

by Stephen Bilkis

The Defendant is charged with two counts Criminal Possession of a Controlled Substance in the Seventh Degree and Unlawful Fleeing of a Police Officer in the Third Degree, in violation of Penal Law §§ 220.03 and 270.25, respectively, along with Driving While Ability Impaired by Drugs, four counts of Failing to Stop at a Stop Sign, and Passing a Steady Red Light, in violation of VTL §§ 1192(4), 1172(a) and 1111(d)(1), respectively.

A hearing was held to determine issues involving probable cause for the Defendant’s arrest, suppression of all tangible evidence seized from the Defendant and/or his vehicle, and the suppression of statements allegedly made by the Defendant.

Published on: June 30, 2015

Court Discusses Case Filed by Nassau County Social Services

by Stephen Bilkis

This is a Motion by Respondent for an Order pursuant to Section 3212 of the C.P.L.R. dismissing a proceeding filed by the Nassau County Department of Social Services with prejudice on the grounds that Respondent has an absolute defense to the proceeding due to a discharge in bankruptcy of the debt allegedly owed to Nassau County Department of Social Services, and is defending against the violation petition filed by the Department interposing a defense that the arrears of $1,505.00 were discharged in bankruptcy.

Respondent filed a petition for bankruptcy in the United States District Court for the Eastern District on August 16, 1979. The debt due the Department of Social Services was included in the bankruptcy petition. The Department of Social Services received notification of the proceeding.