Nassau County

Published on: July 6, 2015

Parties Are Charged With Neglect of Their Child

by Stephen Bilkis

The court is presented with the issue of whether an attorney of record for a set of parties may inspect the court records wherein the parties were charged with neglect of their child when he was not the attorney in such proceeding. The neglect charge in such case was dismissed. The stated purpose of such inspection is to obtain evidence in an action against a doctor who was a witness in such neglect proceedings in the Family Court.

The records of any proceeding in the family court shall not be open to indiscriminate public inspection. However, the court in its discretion in any case may permit the inspection of any papers or records.

Published on: July 1, 2015

Husband Seeks Equitable Distribution in Divorce Case

by Stephen Bilkis

In this family case, the husband wishes to preserve his priority in time, perhaps for commencement date purposes under equitable distribution and the cause of action he has asserted, and that right should not be denied. Similarly, the wife wishes to proceed on her cause of action, either in the event the husband fails on his or, perhaps, under the concept of a dual divorce. Moreover, she may seek to pursue pendente lite relief under the new statutory guidelines which will only be available to her in Action # 2, commenced after October 12, 2010. A party is not obligated to counter-claim in Action #1 just because the husband has previously commenced such an action against her. Instead, the wife may assert an independent cause of action in a separate suit (Action # 2) that will not be subject to dismissal on the ground that “there is another action pending between the same parties for the same cause of action” (CPLR § 3211[a][4] ), as long as the relief requested is different from that requested in Action # 1.

In Action # 2, the wife now moves to partake in the benefits of the new matrimonial legislation and seeks, inter alia, pendente lite maintenance and counsel fees as well as partial summary judgment on grounds (DRL § 170[7] ) under the new law. She also seeks pendente lite child support, educational expenses and related relief, as well as payment of all the carrying charges for the parties home, her automobile. medical, dental and life insurance and unreimbursed medical expenses. The court notes that the instant motions were fully submitted on the date of the Preliminary Conference, January 12, 2011, at which time the husband consented to pay the carrying charges on the marital residence pendente lite, including utilities, real estate taxes and homeowner’s insurance and to maintain health insurance for the entire family and pay uncovered health expenses, provided the wife uses in network providers.

Published on: May 7, 2015

Petitioner Asserts Right to Counsel via Legal Aid

by Stephen Bilkis

The basis of this application, made by the Legal Aid Society of Nassau County and the attorney in charge of the Legal Aid Society of Nassau County, is the refusal by the Judge of the District Court of Nassau County, to permit the petitioner to continue to represent defendant on a pending charge of violating Section 240.20(5) and 240.20(6) of the Penal Law.

On June 24, 1971 defendant appeared pro se in the Arraignment Part of the District Court in response to the charge supra. At that time it is alleged that defendant indicated he could not afford an attorney and the matter was adjourned to June 20, 1971 and July 29, 1971 when defendant was arraigned. At that time defendant was represented by the Legal Aid Society to whom the case had been referred and who accepted defendant as a client.

Published on: May 6, 2015

Petition Brings Case Requesting Relief Pursuant to Real Property Laws

by Stephen Bilkis

This is a hybrid proceeding and action for damages by the petitioner as general partner of a Family Limited Partnership “the petitioner” for stated relief pursuant to Real Property Tax Law Article 7 and/or a writ of mandamus pursuant to CPLR Article 78 compelling the respondent Nassau County Board of Assessors and the Nassau County Department of Assessment “the respondents” to: (1) implement and abide by a decision rendered after a small claims assessment review hearing, dated November 27, 2006 which, inter alia, reduced the petitioner’s assessment for the 2006/2007 tax years and recognized the petitioner’s standing to maintain a SCAR proceeding within the meaning of Real Property Tax Law § 730; (2) further compelling the respondents to grant the petitioner a partial STAR exemption (RPTL § 425), and/or in effect, for relief setting aside the respondents’ January, 2007 denial of the petitioner’s application for a partial STAR exemption; and (3) for further relief awarding the petitioner punitive damages in the amount of $1 million is granted in part and denied in part as set forth below.

The petitioner as general partner of the Family Limited Partnership has commenced the within hybrid action and proceeding, styled as one pursuant to CPLR Article 78 and/ or article 7, et., seq., of the Real Property Tax Law (A. Pet., ¶ 18), for a writ of mandamus compelling the respondent Nassau County Board of Assessors and the Nassau County Department of Assessment [ collectively “the respondents”] to implement and abide by a decision rendered after a small claims assessment review hearing, dated November 11, 2006 which, inter alia, (i) recognized the petitioner-partnership’s standing and eligibility to maintain a SCAR proceeding within the meaning of Real Property Tax Law § 730; and (ii) then reduced the petitioner’s assessment for the 2006/2007 tax years.

Published on: April 2, 2015

Court Considers Summary Judgment Where There is No Issue of Material Fact

by Stephen Bilkis

This motion arises out of an underlying personal injury action, filed in this Court in June 2009, wherein the plaintiff alleged violations under Labor Law §§240 and 241. Plaintiff fell from a ladder while performing construction work on the improved real property owned by defendants. Plaintiff is alleging that the statutory residential exemption does not apply as the real property is in actuality, the site of plaintiff’s business entity.

On September, 2008, the owner of the property entered into a work agreement which provided that his company was to “repair and painting” the “residence”, and the contract was executed by as owner of the subject premises. Such work included the repair of shingles, siding, and painting the house, including the windows and window trimming. According to the defendants, the premises is and was at the time of the underlying action, a private one-family residence and the home of multi generations of the family. The real property included a main house and a renovated cottage. The work was to be performed on the main house.

Published on: March 30, 2015

Court Decides How Domicile of Claimant Effects Case

by Stephen Bilkis

In this probate proceeding objections were filed and a jury demanded by respondents. A motion is now made by them to dismiss the petition before any trial on the merits upon the ground that the decedent was not a (domiciliary) resident of Nassau County at her death on February 14, 1977 as specified in SCPA 206, subd. 1. They request that the proceeding be forwarded to New York County as the “proper county of residence” and also for the convenience of witnesses.

In support of the motion there have been filed affidavits of respondents’ attorney and of respondent, along with copies of affidavits and exhibits which had been previously submitted to this court in connection with an application to revoke letters testamentary which had been issued to the proponent here on the estate of this decedent’s husband, who died on May 26, 1975. In opposition to the motion various other facts are asserted to sustain proponent’s claim that Nassau County was the domiciliary residence of decedent and both attorneys have submitted memoranda in support of their respective positions. The court has examined them and will discuss below the various facts alleged by both sides.

Published on: March 28, 2015

Plaintiff Seeks Reimbursement for Cost of Tuition for Foster Child

by Stephen Bilkis

Plaintiff seeks reimbursement for the cost of tuition for a foster child, pursuant to Education Law section 3202(5)(a) which provides for the distribution of the cost of educating indigent children among the school districts of this state. This child’s mother, was confined to the Bedford Hills Correctional Facility at Bedford Hills, New York when the child was born on June 27, 1965. The mother, immediately prior to her incarceration, resided for several months in 1964 within the Amityville Central School District. She remained in prison until January 5, 1970 and has thereafter not returned to live in Amityville.

The Nassau County Department of Social Services assumed responsibility for the support and maintenance of Cheryl on February 16, 1966, and ever since, has had her in their charge. It appears that the child was placed in foster care in Westbury at the age of eight months and has received her education within the schools of the plaintiff Westbury School District.

Published on: March 20, 2015

Nonparty Witness Moves for an Order to Quash Subpoena Duces Tecum

by Stephen Bilkis

The nonparty witness moves for an order pursuant to CPLR 2304 quashing the subpoena duces tecum served upon him, and for a protective order pursuant to CPLR 3103 blocking the taking of his deposition in this action, and further blocking the disclosure of investigative reports, notes, and materials, and granting a stay of discovery. The plaintiffs cross move for an order pursuant to CPLR 2308 (b) holding the nonparty witness in contempt of court for disobeying the subpoena duces tecum, for an order requiring him to appear for a deposition; for an order requiring him to pay the court reporter costs associated with the first deposition; for an order pursuant to 22 NYCRR § 130-1.1 for sanctions against him and his counsel; and for an order denying his amended motion dated December 22, 2008. Each opposes the motion of the other. This Court has carefully reviewed and considered all of the papers submitted with respect to the motion and cross motion.

The Deputy County Attorney for Nassau County, the attorney for the defendants in an action pending in the United States District Court, Eastern District of New York under Docket number CV-07-2032 (JFB) (WDW) states, in an affirmation dated December 19, 2008, the underlying matter involves a former Nassau County Corrections Officer. The Deputy County Attorney states an investigation into the plaintiffs Workers Compensation claim was assigned to the nonparty witness, who is affiliated with the Nassau County Attorney’s Office, and it expanded to involve allegations regarding the plaintiffs General Municipal Law § 207 (c) and job arbitration proceedings. The Deputy County Attorney points out the nonparty witness was in contact with a named defendant in the instant action in connection with that investigation, but not in contact with the codefendants here. The Deputy County Attorney notes that investigation is open and ongoing, and the nonparty witness is scheduled to testify soon at the plaintiffs job arbitration proceeding, and the plaintiff either has not yet testified or has not completed his testimony in that proceeding. The Deputy County Attorney remarks there is no provision for depositions to be held in arbitration proceedings, and pursuant to CPLR § 2404 and 22 NYCRR 202.7 (b), this affirmant contacted plaintiffs’ counsel, who issued the subpoena duces tecum, and requested it be withdrawn. The Deputy County Attorney states the grounds for the request were an improper attempt to obtain disclosure of the nonparty witness’ anticipated testimony and investigative materials for use in the arbitration proceeding, and the deposition would be duplicative since the nonparty witness would soon testify at that arbitration proceeding. The Deputy County Attorney explains the investigation by the nonparty witness is incomplete, disclosure now would hamper further investigation, investigation is attorney work product because it was initiated by the Nassau County Attorney’s Office in connection with the plaintiffs’ claims, and the Nassau County Attorney’s Office offered to produce the nonparty witness here following completion of his testimony in the arbitration. The Deputy County Attorney adds a copy of the nonparty witness’ testimony at the arbitration proceeding could be furnished to plaintiffs’ counsel, and obviate additional deposition testimony. The Deputy County Attorney submits the plaintiff would be placed at an unfair advantage in the Workers Compensation and arbitration proceedings if he is permitted to ascertain details of the nonparty witness’ ongoing investigation. The Deputy County Attorney avers the investigation is privileged, and its release now could compromise the probe and prejudice Nassau County while the plaintiffs would suffer no prejudice by waiting until the nonparty witness testifies at the arbitration proceeding.

Published on: March 19, 2015

Defendants Seek Summary Judgment Pursuant to CPLR 3212

by Stephen Bilkis

In this family case, the plaintiff in this action seeks to recover damages for medical malpractice and lack of informed consent. She underwent gastric bypass surgery at a hospital by the defendant doctor on July 23, 2008 and she was discharged on July 28, 2008. On the morning of July 29, 2008, she was transported to another hospital via ambulance because she was suffering from severe abdominal pain. She was treated there for eight hours. While there, she was examined and tests were conducted including a CT scan of her abdomen.

A bariatric surgeon conducted a surgical consult via telephone. His primary differential diagnosis included post-operative pain along with anxiety of recent surgery, some form of intra-abdominal process, infection or inflammation. The possibility of an anastomotic leak was also considered.

Published on: March 14, 2015

Petitioner Contends Several Flaws with Court Trial

by Stephen Bilkis

The plaintiff is an experienced police informant, met the defendant towards the end of December, 1997 when they were both incarcerated at the Nassau County Jail. At the time that they met, the police informant was charged with the felony of scheme to defraud in the first degree and misdemeanor criminal contempt charges. The two men became friends in the correctional institution, and in March of 1998 defendant confided to him that he had secreted monies from his mother’s estate. Defendant told him in substance that he had been held in contempt by the Surrogate for withholding estate monies for which he had not made a proper accounting to the court. Defendant also indicated that he was represented by counsel in connection with the civil contempt proceeding. Defendant stated that he considered his brothers to be partially responsible for his incarceration, that he hated both of his brothers, and that he wanted to have one of his brothers killed. Defendant also expressed a desire to harm the Surrogate. Finally, defendant spoke of a woman to whom he had entrusted $45,000 who had squandered the money. He was concerned about this woman because she was in possession of certain documents of his which would prove damaging if they were obtained by the IRS. The police informant told defendant that he knew someone who could “take care” of his brother for him.

On March 18, 1998 the police informant wrote a letter to Surrogate informing him of defendant’s intentions and offering to be of assistance to law enforcement. Surrogate forwarded the letter to the Nassau County District Attorney’s office. In response to defendant’s letter, ADA and the investigator of the Nassau County District Attorney’s Office arranged to meet with him on March 24. At the meeting Ms. Meister questioned Miller about the matters mentioned in his letter to Surrogate took notes, and told him she would get back to him shortly as to whether he would be accepted for cooperation with the District Attorney’s office. On June 3, defendant again met with the police informant and stated that he wanted to “rearrange” the hit and to have the police informant contact and act as “the middleman.” Defendant also indicated that he had a $2,000 check which was available as a down payment on the contract. An indictment was filed against defendant on June 11, 1998.