Articles Posted in Westchester County

A New York Family Lawyer sais this case reveals the troubling state of public housing policy in the City of New York and the lack of available counsel for low-income tenants seeking to avoid homelessness. A Bronx Family Lawyer said that, petitioner commenced this Article 78 proceeding challenging the denial of her application for a lease in her own name as the “remaining family member” of the deceased tenant of record, her husband. Respondent New York City Housing Authority (NYCHA) cross-moved to dismiss the proceeding as barred by the statute of limitations. Following the initial conference with the Court, NYCHA also filed a Verified Answer addressing the merits of the petition. Thereafter, the Court held repeated conferences in an effort to resolve the matter so that petitioner could continue to reside in the apartment, along with her adult daughter who is deaf and disabled in other respects, and her two teenage granddaughters, who are the daughters of the former. No resolution having been reached, this Court is proceeding to determine the narrow issue presented; that is, whether the decision by the Hearing Officer upholding NYCHA’s denial of petitioner’s request for a lease was arbitrary and capricious. However, this decision is not intended to in any way tie the hands of Judge who is being presented with far broader issues in the related holdover proceeding pending before him in the Bronx Housing Court.

A New York Custody Lawyer said that, in or about the year 2000, petitioner’s husband became the tenant of record in apartment 11G, a four-room apartment in Sedgwick Houses located at 156 West 174th Street in the Bronx. The records confirm that an adult daughter of petitioner’s husband also resided in the apartment until she moved out some time in 2005. Whereas the husband had listed the adult daughter’s income on his annual income affidavit filed every spring in the early years of his tenancy, he did not list her in 2006 or 2007. On his April 5, 2007 income affidavit, the father listed his name and the name of his wife. For some reason, the surname was crossed off the section of the affidavit entitled “Persons Living in Apartment.” However, petitioner signed the form as “co-lessee” and included her annual income of $32,000 for work as a home attendant. Neither of those entries was crossed out. The NYCHA Interview Records contain no entries confirming when petitioner moved into the apartment and what communications NYCHA had with the tenant upon receipt of the income affidavit. Indeed, the file contains no entries whatsoever written by a Housing Assistant during the critical three-year period from February 17, 2004 through May 4, 2007, after which the tenant passed away.

A Westchester County Family Lawyer said that, according to NYCHA records, the husband submitted a formal written request to NYCHA on or about May 4, 2007, for his wife to permanently join the household. The husband explained that he was ill and wanted his wife to live in the apartment and care for him. On May 9, 2007, NYCHA approved the request. On May 11, 2007, the husband passed away. Petitioner then asked NYCHA for permission to stay in the apartment and obtain a lease in her own name, and she followed all the required procedures to pursue that request. The Housing Manager denied the request, and the Borough Manager agreed, finding that she was not eligible for a lease in her own name because she had not been living in the apartment with the husband with NYCHA’s permission for the requisite one-year period before the tenant of record died.

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On 8 May 2007, JG died, fourteen months old, as a result of burns she sustained in a fire that occurred at her apartment on 15 June 2006. The apartment was rented by her mother, TC. A New York Family Lawyer said it was occupied by the decedent, her mother, her infant half-brother AC, and her mother’s boyfriend, RJ. AC and RJ also died as a result of the fire. On 27 August 2007, Mr. FBL, the Monroe County Public Administrator, issued limited letters of estate administration, and thereafter retained C & B, P.C. to commence an action for the wrongful death and conscious pain and suffering against the City of Rochester, the County of Monroe and the landlord, AW. After an extensive discovery over a period of nearly four years, a settlement was reached with AW in the amount of $100,000.00, representing his full liability insurance policy limit, to be divided equally between the three deceased plaintiffs. And, the County and the City jointly offered $30,000.00 to be divided between the three plaintiffs. In addition, the Monroe County Department of Human Services agreed to reduce its claim against the estate for the decedent’s medical care from $68,035.52 to $12,524.50.

A New York Child Custody Lawyer said that due to decedent’s age and nature of her injuries, the Public Administrator proposed allocating the decedent’s portion of the settlement proceeds entirely to the conscious pain and suffering. On 1 July 2011 the Public Administrator filed a Petition to approve the proposed settlement pursuant to EPTL §5-4.6. Meanwhile, a Guardian ad Litem, Atty. FGM, Esq. was appointed to represent the interests of the decedent’s father, RG, who was under incarceration after a felony conviction. On 23 August 2011 at the court return date, both Guardian ad Litem and private counsel Atty. JAK, Esq. appeared on behalf of RG in which FGM was thereafter relieved. On 9 September 2011 JAK entered formal objections on behalf of her client. She argued that both the proposed gross settlement amount and the proposed distribution to the decedent’s estate were inadequate, and she also disputed the alleged withholding of requested documents from the litigation file of C & B, P.C. related to their reported disbursements. Additionally, she argued that C & B, P.C. had an incurable conflict relating to the simultaneous representation of all three plaintiffs in the suit against the landlord.

A Westchester County Family Lawyer on 4 April 2012, the Public Administrator filed an investigatory memorandum analyzing the liability and damages in the underlying estate litigation. He argued that the proposed settlement was appropriate based on issues of proximate cause and contributory negligence, as well as the lack of pecuniary damages due to the young age and unconsciousness of the decedent. Based on this review, the Public Administrator concluded that it was likely that the plaintiffs would have recovered nothing if the case had gone to trial.

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A New York Family Lawyer said that, defendant moves pursuant to CPLR § 3211 (a)(7) to dismiss plaintiff’s complaint and to sanction plaintiff pursuant to 22 NYCRR §130.1-1(a). Plaintiff opposes the motion. On November 23, 2003, plaintiff commenced an action against the defendant by filing a summons and verified complaint with the Kings County Clerk. The complaint sets forth twenty five allegations of fact in support of one cause of action for malicious prosecution based on defendant’s commencement of three Family Court proceedings and one Criminal Court complaint against the plaintiff. Defendant contends that the plaintiff’s complaint does not state a cause of action and merits sanctions as frivolous.

A New York Custody Lawyer said that, the undisputed facts establish that the parties were married on May 21, 1989 in Brooklyn, New York. They have a daughter born on October 29, 1989, and a son born on March 10, 1992. By written agreement dated April 22, 2001, the parties legally separated. On June 19, 2001, defendant’s action for divorce was resolved by a divorce judgment issued by the Kings County Supreme Court. The divorce judgment incorporated the parties’ separation agreement and granted the defendant, among other things, custody of their children, six hundred dollars of monthly child support payments, and additional child support for the children’s unreimbursed medical and school expenses. The judgment also granted the Family Court concurrent jurisdiction with the Supreme Court on issues of maintenance, support, custody and visitation.

A Westchester County Family Lawyer said that, defendant commenced three separate civil proceedings against the plaintiff in Kings County Family Court. Pursuant to Article 8 of the Family Court Act, defendant filed a petition, under docket number O-08296/02, alleging that the plaintiff committed certain family offenses. Family Court Judge found that there was good cause shown to issue the defendant a temporary order of protection restraining the plaintiff from assaulting, harassing, menacing or threatening her. The petition was eventually dismissed.

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This decision follows the release of the two juvenile respondents from custody, despite a motion for their continued detention pursuant to Family Court Act § 307.4(4)(c), after the court held a pre-petition hearing and determined that the court had jurisdiction to detain the respondents pending a petition being filed.

A New York Family Lawyer said that, on Sunday, August 7, 2011 at about 7 p.m. uniformed police officers took both thirteen-year-old respondents into custody in connection with an alleged robbery occurring on the same date. Apparently, respondent D was identified in a show-up and arrested by the uniformed officers before being transported to the 94th Precinct. The basis for the detention of respondent is less clear, although he also may have been under arrest. Both respondents were detained at the 94th Precinct for over twenty-four hours until the evening of August 8, when they were taken to the Horizons detention center, from which the respondents were brought to the Kings County Family Court on the morning of Tuesday, August 9, 2011. Altogether the respondents were in custody for about thirty-eight hours before being produced in court. These facts came to light in a pre-petition hearing held under Family Court Act § 307.4 on the morning of August 9.

A New York Custody Lawyer said that, while in detention at the 94th Precinct on Sunday night, the respondents were placed in lineups arranged by detectives in connection with an investigation into events occurring on Saturday August 6, unrelated to the event that lead to their detention by the uniformed officers on August 7. Specifically, the detective testified that the respondents were detained at about 7 p.m. on August 7 by the uniformed police officers in regard to an alleged robbery. The uniformed officers brought the respondents to the 94th Precinct. The detective understood that defendant was under arrest, although he was not certain about the other defendant. The uniformed officers notified the respondents’ parents, who appeared at the precinct sometime around 8 p.m. on August 7. The detective suspected that the respondents may have been involved in two additional crimes on August 6. Apparently the detective questioned both respondents in the presence of their parent in relation to the August 6 crimes, and defendant made a statement at about 8:35 p.m. on August 7. The detective arranged for both respondents to be placed in line-ups at about 12:45 a.m. on August 8 with regard to one of the August 6 crimes. The result of those line-ups is unclear. The detective decided to conduct a second line-up with regard to the second August 6 crime, later in the day on August 8.

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A New York Family Lawyer said the complainant woman alleges in a claim filed on March 2, 2012, that on December 6, 2011 the Kings County Family Court granted her petition for modification of an Order of Support by Default. The court’s order, however, was erroneously associated with an old child support account number, since a clerk of that court refused to enter an updated number. The clerk’s action resulted in the complainant’s woman not receiving monthly child support payments of $714.00. In regard to damages, the complainant woman states that she is not getting her my son’s child support payments from the support collection unit.

A New York Custody Lawyer a pre-answer motion, the defendant moves to dismiss the claim on the ground that the Family Court lacks jurisdiction over it. Specifically, the defendant contends that the County Family Court does not have the authority to review a Family Court order, and does not have the jurisdiction to award equitable relief.

A Westchester County Family Lawyer said the Court of Claims has jurisdiction only over claims for money damages against the State of New York and a limited number of other entities specifically enumerated by statute. It has jurisdiction to hear and determine a claim of any person, corporation or municipality against the state for the appropriation of any real or personal property or any interest therein, for the breach of contract, express or implied, or for the torts of its officers or employees while acting as such officers or employees, providing the claimant complies with the limitations of this article. The statute further states that the Court of Claims has jurisdiction to render judgment in favor of the claimant or the state for such sum as should be paid by or to the state. Though not entirely clear from the contents of the claim, to the extent that the complainant seek a review of another Court’s rulings, the Court of Claims does not sit in review of Family Court determinations or correct errors made in its proceedings. To the extent that claimant requests that the Family Court direct that a clerical error be corrected so that she may receive support payments in the future, and remove an employee from the Family Court, such relief is essentially equitable in nature, which the County Family Court has no jurisdiction to grant.

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A New York Family Lawyer said that, on January 29, 1967 the defendant was arrested for felonious assault committed by him upon his wife by slashing her face with a knife. On the following day, defendant was arraigned on that charge in the Criminal Court of Queens County and was held in bail. The matter was adjourned on a number of occasions, until February 10th, when, after a hearing was had, defendant was held for the action of the grand jury. On March 15, 1967, the indictment herein was returned, and it charged defendant with two counts of assault in the second degree. On March 29th after counsel was assigned to defendant, he was arraigned on that indictment, plead not guilty, and the matter was adjourned. On May 11, 1967, upon motion of his counsel (and not by the district attorney as defendant erroneously states in his affidavit), an order was made in this Court transferring this matter to the Family Court.

A New York Custody Lawyer said that, defendant apparently remained incarcerated until July, when upon a writ of habeas corpus he was paroled ‘pending his appearance in the Family Court on August 7, 1967’ and the district attorney was directed to submit an order transferring the matter to that court. On August 22nd the Family Court advised defendant that that court did not choose to handle the matter. It thereupon sent the case to the Criminal Court of the City of New York although the transfer to it had been made by the Supreme Court. The Criminal Court thereafter dismissed the proceeding before it and the procedures relative to the pending indictment were thereupon continued in this Court.

The issue in this case is whether the motion of the defendant to dismiss the indictment should be granted.

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A New York Family Lawyer said that, in this case a father who is serving 25 years to life for murdering the mother of his children (i.e., murder in the second degree) seeks to modify the provisions of the custody order which give him no communication, contact or visitation rights with his children. The motion to dismiss his petition is granted because there is no change of circumstances to justify even getting to a best interests test. He also alleges a violation of certain alleged rights to get information about the children under the custody order. The two subject children one boy (born December 27, 2000, age 9) and one girl (born January 29, 2002, age 8). The respondents herein, the maternal aunt and uncle of the children, were awarded custody of the children after the children’s mother was murdered by their father, the petitioner herein. On October 19, 2009, the father filed two sworn, pro se petitions.

A New York Child Custody Lawyer said that, the father’s first petition seeks to modify a prior Order of Family Court, alleging that the uncle had told the father that the children wish to visit the father and have written and telephone contact with the father, and that they assent to visitation and understand the father’s incarceration and emotional and other ramifications. On December 2, 2009, counsel for the aunt and uncle cross-petitioned for summary judgment dismissing the father’s visitation petition, alleging that the father failed to state a sufficient change of circumstances to support a modification.

A Suffolk Visitation Lawyer said that, the father’s second petition alleges a violation of the prior order of Family Court. The father alleges that the aunt and uncle willfully failed to obey the court order by not providing at least annual updates regarding the status of the children’s health, education and general well-being as well as updated photographs of the children. Counsel for the aunt and uncle also cross-petitioned for dismissal of this violation petition, arguing that the judge struck from the order the provisions to which they had otherwise agreed which would have allowed the respondents to initiate contact or communication with the father. Thus, they contend there has been no violation. Counsel for the father opposed both motions for dismissal, after time was extended for him to respond through counsel in writing. The Children’s Attorney filed papers in support of the motions, requesting that both petitions be dismissed.

A New York Family Lawyer related child custody and visitation proceedings pursuant to Family Court Act article 6, and related family offense proceedings pursuant to Family Court Act article 8, a Kings County Family attorney said that the father appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County, as, after a hearing, denied his petition to modify a prior custody order of the Family Court, Kings County, awarding the parties joint legal custody of their child with physical custody to the mother and liberal visitation to the father, so as to award him sole custody of the child, granted the mother’s petition to modify the prior custody order so as to award her sole custody of the child and to establish a visitation schedule for the father, and dismissed his two family offense petitions.

In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child, which requires evaluation of the “totality of the circumstances”. Here, the attorney for the child has advised this court of significant new developments which have occurred since the issuance of the order appealed from, including the commencement of a Family Court article 10 child protective proceeding against the mother, the filing of multiple domestic incident reports by both parents, and the lodging of complaints against both parents with the New York State Central Register of Child Abuse and Maltreatment.

A New York Custody Lawyer said that in light of these new factual circumstances, which this Court may properly consider, the record before us is no longer sufficient to determine which custodial arrangement is in the child’s best interests. Accordingly, the matter must be remitted to the Supreme Court, Kings County, to be consolidated with the related petitions pending in the Family Court, Kings County, and for a new hearing and a new custody determination thereafter by the Family Court, Kings County. The Court expressed no opinion as to the appropriate custody determination.

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