Custody

Published on: May 3, 2015

Court Decides of License for Foster Care Should be Revoked

by Stephen Bilkis

An application pursuant to CPLR Article 78 by petitioners PJB and VJB to, inter alia, annul the determination of respondent SCO Family of Services (SCO) dated May 6, 2010, which concluded that petitioners’ residence located at 419 Pine Place, Uniondale, New York could no longer be maintained as a foster home and would be closed effective May 28, 2010, is determined as follows.

Motion by respondent SCO pursuant to CPLR 1001(a) and 1003 to dismiss the proceeding for failure to join an indispensable party is determined as follows.

Since in or about 2005, petitioners, who allege that they possess a certificate for the care of children at board with the Nassau County Department of Social Services, have operated a foster home for the care of children at 419 Pine Street, Uniondale, New York under the auspices of respondent SCO,1 a not-for-profit foster care agency authorized by the New York State Office of Children’s and Family Services to provide foster care services.2 According to petitioners, they have successfully housed several children since in or about 2005 when their relationship with the Salvation Army began.

Published on: May 2, 2015

Court Decides Case Under Election Law Sec.330

by Stephen Bilkis

In two proceedings under the Election Law (Section 330) for the judicial recanvass, review and recount of all the absentee and military ballots cast in the last general election for the office of District Court Judge of the County of Nassau, in the Third Assembly District, one proceeding having been brought by Frank X. Altimari, the candidate of the Republican Party, and the other proceeding having been brought by Julius R. Lippman, the candidate of the Democratic Party, the candidate Altimari appeals from the following judgment and order of the Supreme Court, Nassau County: (1) a judgment entered January 22, 1965 after a prior appeal and the hearing held pursuant to the Court of Appeals’ remittitur thereon, dated January 7 1965, 15 N.Y.2d 686, 256 N.Y.S.2d 133, 204 N.E.2d 332 [and amended February 11, 1965], which judgment declared that the two military ballots numbered 33-1 and 33-2 are valid and constitute two additional votes for candidate Lippman and that there is a tie vote for the said office, and directed that the Board of Canvassers amend its statement of canvass and the Board of Elections certify the results accordingly; and (2) an order entered January 20, 1965, which denied the candidate Altimari’s motion to reopen the proceedings so as to permit the introduction of newly discovered evidence with respect to the residence and qualification of the two voters who cast and mailed the said military ballots 33-1 and 33-2.

Judgment reversed on the law and in the exercise of discretion, without costs, and proceedings remitted to Special Term to take plenary proof with respect to the eligibility and qualifications to vote of the persons who cast and mailed to two military ballots numbered 33-1 and 33-2; an for a determination as to the validity of said ballots based upon such proof. No questions of fact were considered.

The order reversed on the law and in the exercise of discretion, without costs, and motion granted.

Published on: April 4, 2015

Petitioners Claim Previous Court Determinations Were Arbitrary and Capricious

by Stephen Bilkis

In this proceeding was instituted pursuant to Article 78 of the CPLR by Mr. and Mrs. Banks, public assistance recipients, compelling Respondents to pay the balance owed by the Banks for the installation of a heating system in their home.

Mrs. Banks is the fee owner of the home where she and her husband live together with their six minor children. In 1965, before the Banks were receiving public assistance, they ordered on time payment the installation of a heating system for the second floor of their home to make that floor habitable for the children of their burgeoning family during the winter. They have been receiving public assistance continuously since 1966.

Published on: April 3, 2015

Petitioners Seek to Renew a Motion to Dismiss

by Stephen Bilkis

Upon the foregoing papers, petitioners individually, as preliminary executor of the estate of the decedent and as the vested beneficial owner of shares of the respondent 4C Foods Corp. held by certain trusts, moves for an order: (1) pursuant to CPLR 2221 granting leave to renew respondent’s motion to dismiss the Petition that was granted in this court’s order dated December 5, 2012, and upon renewal, denying respondent’s motion to dismiss the petition; and (2), pursuant to CPLR 3025, granting petitioners leave to file and serve an amended petition.

Petitioners’ motion is denied with respect to petitioners’ claims pursuant to Business Corporation Law §§ 623 and 806. With respect to the proposed causes of action premised on the breach of the implied covenant of good faith and fair dealing and breach of fiduciary duty, the motion to amend is denied, but with leave to file an amended pleading containing such causes of action upon the following events: (1) the executor of the estate of the decedent, is barred from transferring voting shares individually; (2) these voting shares are purchased by respondent, its directors and or its majority shareholders; and (3) such causes of action are not otherwise rendered moot by any determination made in the Nassau County declaratory judgment action. The motion for leave to file an amended petition is granted with respect to the proposed declaratory judgment claim in which petitioner seeks a declaration that the January 11, 2013 notice addressing the transfer of voting shares formerly controlled is a nullity. The special proceeding is converted to a declaratory judgment action, but any further proceedings in the action are stayed pending the determination of the Nassau County declaratory judgment action.

Published on: April 1, 2015

Petitioner Seeks to Modify Visitation

by Stephen Bilkis

The petitioner/mother, and the respondent/father, were divorced by judgment of divorce, dated February 14, 2000 and entered by the Nassau County Clerk on February 15, 2000. The judgment of divorce granted the parties joint legal custody of their children. Physical custody was awarded to the petitioner, subject to the respondent’s right to visitation as set forth in their separation agreement, dated August 31, 1998, which was incorporated (but did not merge) with the judgment of divorce. The separation agreement provided, among other things, that the father would have mid-week overnight visitation with the children.

On April 17, 2003, the petitioner filed an application with this Court for modification of the visitation provisions of the judgment of divorce. The petition requested that the respondent’s mid-week visitation be eliminated, as it was “not practical” because her new husband, had secured employment in the Albany, New York area. The petition stated that she and her four children (the two Jones children and the two children of her current marriage) would relocate to the Albany area to join her husband on or about June 30, 2003, at the end of the school year.

Published on: March 25, 2015

Court Decides Custody in Light of Sexual Abuse Allegations

by Stephen Bilkis

Following an 11-day hearing, Family Court, by order entered September 15, 2005, awarded respondent wife sole legal and physical custody of the parties’ minor child, D (born in 2000), and established a visitation schedule for petitioner. Family Court did so with great hesitation, noting respondent’s marked weaknesses as a parent, including her insistence that petitioner sexually abused the child—despite the lack of sufficient credible evidence to sustain that allegation—and her noted lack of effort to encourage any sort of a relationship between the child and petitioner.

Shortly thereafter, respondent failed to produce the child for a scheduled visitation with petitioner in Nassau County, prompting Family Court to order the parties to appear on September 28, 2005 to address this issue. At that time, it came to light that respondent recently had informed the child’s school psychologist that petitioner had sexually abused the child; the school psychologist, in turn, filed a report with the Nassau County Department of Social Services. Respondent conceded that she did not advise the school psychologist of the prior proceedings in Family Court or that the allegations of abuse had been thoroughly explored and laid to rest in the course thereof. Family Court then directed that neither party discuss the prior allegations of sexual abuse with anyone without the express permission of the court.

Published on: March 18, 2015

Court Discusses Petition for Tax Exemption

by Stephen Bilkis

The Plaintiff, claims that it is entitled to a real property tax exemption pursuant to Real Property Tax Law [“R.P.T.L.”] §§ 420(a),(b)1 and 4622 for the years 2004 and 2005 for its property located at 32 College Road, Monsey, New York within the Town of Ramapo. The trial of this matter took place on February 15, 2006 during which witnesses testified on behalf of the Congregation and the Defendants. After a careful review the trial record and exhibits and the excellent post trial memoranda of law including findings of fact and conclusions of law submitted by the parties the Court is now prepared to render its Decision.

The Congregation was organized as a religious corporation, the Certificate of Incorporation5 of which provides” SECOND: The purposes for which this corporation is formed are. To conduct and maintain a House of Worship in accordance with orthodox Jewish custom and traditions to promote the religious, intellectual, moral and social welfare among its members and their families, to promote and increase interest in the study of the Torah, by maintaining classes for the teaching of the customs, traditions and mode of worship of the orthodox Jewish faith. FIFTH: The principal place of worship of the corporation shall be located at 32 College Road, Monsey, New York”.

Published on: March 3, 2015

Court Listens to Case Dealing with Article 16 of the CPLR

by Stephen Bilkis

The issue raised in this case involves the application of Article 16 of the CPLR and its effect on the instructions to be given to the jury concerning apportionment of fault between tortfeasors, one of whom was negligent and the other an intentional tortfeasor, not a party to the lawsuit.

Plaintiff and her husband had an ongoing marital dispute. He had in the recent past thrown a substance in plaintiff’s eyes, temporarily blinding her, stolen her car and threatened to kill her. On January 8, 1992, plaintiff obtained a Temporary Order of protection against her husband from the Family Court Queens County. The order was renewed by that court on January 27, 1992 and was in effect on the night of the incident which gave rise to the suit against the County, February 13, 1992. The Family Court had also issued a warrant for the husband’s arrest.

Published on: October 29, 2014

Court Discusses Custody of Allegedly Abused Child

by Stephen Bilkis

In related child abuse and neglect proceedings pursuant to Family Court Act article 10, the petitioner appeals from an order of the Family Court, Kings County, which, upon a decision of the same court, made after a fact-finding hearing, dismissed the petitions.

Article 10 of the Family Court Act defines an “abused child” as “a child under the age of 18 whose parent or other person legally responsible for the child’s care ‘commits, or allows to be committed, a sex offense against such child”, quoting Family Ct. Act § 1012[e][iii]. A prima facie case of child abuse or neglect may be established by evidence of an injury to a child which ordinarily would not occur absent an act or omission of the responsible caretaker.

Published on: October 27, 2014

Court Decides Grandparent Custody Case

by Stephen Bilkis

The subject children lived with the petitioner, their maternal grandmother, intermittently for the first 2 1/4 years and 1 1/4 years of their lives, respectively. After the Administration for Children’s Services filed a petition in a separate matter alleging neglect against the children’s mother, the children were placed with the petitioner on March 1, 2002. However, on March 6 or 8, 2002, the children, who were then 2 1/4 years old and 1 1/4 years old, respectively, were removed from the petitioner’s custody due to the condition of the petitioner’s home. On December 2, 2002, the children were placed with their paternal grandmother, the respondent who was subsequently designated the children’s foster parent and adoptive resource, and they have resided with her since that time.

The petitioner testified that, after the children were removed from her home, she usually visited them approximately once or twice per week until the mother’s parental rights were terminated pursuant to an order of the Family Court. While a finding of fact made by the Family Court during the proceeding to terminate the mother’s parental rights suggests that the petitioner only accompanied the mother to nine of the mother’s scheduled agency visitations with the children, the record reveals that the petitioner had several other visits with the children. The petitioner further testified that she contacted the respondent directly several times to request visitation, but the respondent refused her request.