New York City

Published on: April 4, 2014

Court Discusses Family Member Grievance Hearing

by Stephen Bilkis

A New York Family Lawyer said that, pro se petitioner brings this Article 78 proceeding and seeks a judgment reversing respondent New York City Housing Authority’s (“respondent” or “Housing Authority”) denial of her application to open her default for failing to appear at her remaining family-member grievance hearing. Petitioner claims she has succession rights for Apartment 2D at 1149 229th Drive North, Bronx, New York (Premises), which was previously leased to her deceased mother. Petitioner defaulted in appearing for her remaining-family-member grievance hearing and, following an inquest, the Housing Authority determined that petitioner did not qualify as a remaining family member. The Housing Authority denied petitioner’s application to open her default because she failed to explain her delay in making the application and due to her delinquency in use and occupancy rental payments. Petitioner challenges this determination. Respondent opposes.

The Housing Authority is a corporate governmental entity created to build and operate low-income housing in New York City. Since the federal government funds and regulates public housing, the Housing Authority must annually certify to the Department of Housing and Urban Development (HUD) that it has admitted individuals and families in accordance with HUD regulations. HUD mandates that the Housing Authority regularly monitor the composition and income of each family that has been admitted into public housing. Tenant families also have corresponding obligations to request respondent’s approval before adding any family members as occupants of a unit, and to supply any information necessary when the Housing Authority conducts examinations of family income and composition.

A New York Custody Lawyer said that pursuant to Housing Authority regulations, there are two exceptions to its formal tenant selection process where a tenant of record can lawfully add “authorized family members” to live in their unit. The first is where the Housing Authority allows another individual to become a permanent member of the tenant’s household. To add a person to the household, the tenant of record must obtain the written consent of the building development manager. The second exception allows a remaining- family -member to take over a lease if the tenant of record either moves or dies. To qualify under this exception, the remaining-family-member must have moved into the apartment lawfully, remained in the apartment continuously, and be eligible for public housing. Lawful members of a tenant’s household include the original tenant family, a person born to the tenant of record or to an authorized permanent family member, a person legally adopted by or judicially declared to be the ward of the tenant of record or an authorized family member, or a person who receives written permission to reside in the apartment permanently. In each instance, the person claiming remaining- family -member status must have become an authorized family member of the tenant household and must have remained in the apartment continuously from their date of entry.

Published on: April 3, 2014

Court Decides Case Involving Jurisdiction Issue

by Stephen Bilkis

A New York Family Lawyer said that, defendant, a fugitive for nearly twenty years after pleading guilty to attempted criminal sale of a controlled substance in the third degree in 1991, and moves to either vacate that plea, or have the Court dismiss the case outright. Defendant is not a United States citizen, and claims to have been granted lawful permanent resident status in 1994. Federal authorities in Miami discovered the 1991 warrant issued for defendant’s arrest after he failed to appear for sentencing when defendant attempted to reenter the United States in November 2010 using a passport issued by the Dominican Republic. He was returned to New York to face his long-avoided sentence. He also faces removal from the United States.

A Bronx Visitation Lawyer said that, defendant makes legal challenges to the sufficiency of the plea allocution itself, as well as arguing that his legal representation in 1991 was insufficient under the Supreme Court’s 2010 decision. Defendant also challenges the Court’s jurisdiction to pronounce sentence twenty years after he pled guilty. Finally, defendant makes a post-plea application to have the case dismissed in the interest of justice, ostensibly because he faces mandatory removal by the Department of Immigration and Customs Enforcement as a result of the plea, and will be separated from his three children, who were born in the United States between 1994 and 2001. After filing an affirmation in opposition to all parts of the defense motion, the People entered into new plea discussions and offered defendant an opportunity to substitute a plea to a misdemeanor for the felony plea, with the stated purpose of aiding defendant in the removal proceeding. Upon review of the court file, reports prepared by the Department of Probation in 1991 and in 2010, as well as both parties’ written submissions, and after considering the subsequent oral application to replace the felony conviction, the Court denies the motion.

Defendant was arrested on November 20, 1990, inside 1085 Nelson Avenue in Bronx County. According to the felony complaint, an undercover police officer approached an unnamed, apprehended juvenile at that location, and indicated he wished to buy “perico,” a Spanish word commonly used in narcotics transactions to refer to cocaine. The juvenile directed him to defendant. The officer handed defendant prerecorded buy money, and defendant handed the officer cocaine wrapped in tinfoil. According to an affirmation submitted by ADA in response to an omnibus motion, defendant was arrested within moments of the sale at the same location, and was found in possession of the buy money and fourteen additional tinfoil-wrapped cocaine packages. He was immediately identified by the undercover police officer as the person who sold him cocaine.

Published on: April 2, 2014

Court Decides Whether to Vacate Child Support Judgment

by Stephen Bilkis

A New York Family Lawyer said that, this proceeding was commenced by Petitioner, pro se, by Order to Show Cause dated January 29, 2009, pursuant to Civil Practice Law and Rules (“CPLR”) Article 78 to vacate a Child Support Judgment of Arrears issued in favor of respondent, Office of Temporary Disability Assistance, Division of Child Support Enforcement (“OTDA”), on the grounds that “it has been determined by law to be uncollectible.”

A New York Child Custody Lawyer said that, before responding to the merits of the Petition, OTDA cross moved to dismiss the petition on three grounds, viz: 1. The Petition failed to state a cause of action. 2. That pursuant to General Obligations Law § 17-101, the Statute of Limitations is inapplicable, and 3. Delgado has failed to exhaust his administrative remedies. OTDA further seeks dismissal claiming that OTDA is not the proper respondent entity in a proceeding of this nature.

A New York City Family Lawyer said that, on August 23, 1983, Family Court, Bronx County, ordered petitioner to pay the new York City Department of Social Services (“DSS”) $90.00 per month or about or about $5,280 per year, commencing August 29, 1983, to reimburse DSS with respect to support for his two sons, Gabriel, born February 3, 1981 and Alexander born March 5, 1983 (the “children”). DSS was to receive the funds because the children and their mother were on public assistance. By reason of petitioner’s failure to make the required payments, DSS took petitioner to Bronx Family Court, which, on November 6, 1996, entered an order fixing the arrears due to DSS at $28,801.35 and modified the 1983 order to terminate is prospectively, thereby terminating petitioner’s obligation to provide further support for his children after such date.

Published on: March 31, 2014

Court Decides ACD Case

by Stephen Bilkis

A New York Family Lawyer said that, these motions, numbers 98 and 100, seeking intervention and temporary relief are consolidated for disposition. In this long running case that this court has presided over since its inception and that is now post trial, two mothers seek to intervene on behalf of themselves and their families, requesting that this court stay their imminent eviction from homes where they have resided for many years. They claim that Social Services Law Â§ 350 (1) (a), the decision of the New York State Court of Appeals and this court’s decision after trial and judgment require that shelter allowances, under the Safety Net Assistance (SNA) program (Social Services Law Â§Â§ 343-360) and the Temporary Shelter Supplements (TSS) regulations (18 NYCRR 370.10) are adequate to cover the reasonable costs of housing in New York City.

A New York Custody Lawyer said that, the original plaintiffs brought this action under the public assistance program known as Aid to Dependent Children (ADC). ADC was the state promulgation of the federal Aid to Families with Dependent Children (AFDC) program. In 1990, the New York Court of Appeals determined that New York’s Social Services Law Â§ 350 (1) (a) imposes a duty on the State Commissioner of Social Services to establish shelter allowances for ADC recipients bearing a reasonable relationship to the cost of housing in New York City. In so holding, the Court of Appeals relied on the statute’s express language: “1. (a) Allowances shall be adequate to enable the father, mother or other relative to bring up the child properly, having regard for the physical, mental and moral well-being of such child, in accordance with the provisions of section one hundred thirty-one-a of this chapter and other applicable provisions of law. Allowances shall provide for the child support, maintenance and needs of one or both parents if in need, and in the home and for the support, maintenance and needs of the other relative if he or she is without sufficient means of support, provided such parent, parents and relative are not receiving federal supplemental security income payments and/or additional state payments for which they are eligible. The social services official may, in his discretion, make the incapacitated parent the grantee of the allowance and when allowances are granted for the aid of a child or children due to the unemployment of a parent, such official may make the unemployed parent the grantee of the allowance.” Section 350 (1) (a) remains unchanged today.

A Queens Family Lawyer said that, the Court of Appeals then remanded the case back to this court for a determination as to whether the shelter allowances that the Commissioner had established previously in 1988 were adequate under the statutory standard. After a 3Â½-month trial, this court found that the 1988 shelter allowances did not bear a reasonable relationship to the cost of housing in New York City and ordered the Commissioner to “develop and submit to the Secretary of State for promulgation by March 2, 1998 or, on application to the court, by a reasonable date thereafter, a proposed schedule of shelter allowances for and any successor program.” The Appellate Division affirmed this decision. To date, the Commissioner has not complied with the court’s order, but recently, on July 19, 2002 and in February 2003, the Commissioner proposed regulations to increase shelter allowances. Thus, the shelter allowances for New York City remain inadequate.

Published on: March 30, 2014

Court Decides Custody Battle

by Stephen Bilkis

Two analogous cases were brought before the court for determination.

In the first case, the mother appeals from an order of the Family Court, Kings County in this custody proceeding pursuant to Family Court Act article 6 dated 2 April 1993, for after a hearing was conducted, the court awarded permanent custody of the parties’ four-year-old daughter to the father.

A New York Family Lawyer said the court orders the reversal of the order insofar as appealed from, on the law and the facts, without costs or disbursements. The mother is awarded permanent custody of the parties’ four-year-old daughter, and the matter is remitted to the Family Court, Kings County, for a determination of a visitation schedule for the father.

Published on: March 29, 2014

Court Decides Case Dealing with Family Court Act

by Stephen Bilkis

The facts of this case constitute good cause or special circumstances justifying the 12-day extension of the time constraints of Family Court Act § 350.1(1). A New York Family Lawyer said that, on January 10, 1992, the 13-year-old appellant was arrested. He was charged with acts which, if committed by an adult, would have constituted the crimes of attempted grand larceny in the third degree, attempted grand larceny in the fourth degree, criminal mischief in the third degree, and criminal mischief in the fourth degree. He was remanded to a secure facility on January 13, based upon a history of absconding from Children’s Village at Dobbs Ferry, a non-secure setting, several times in the prior several months, and upon his posing a serious risk of not appearing in court on the return date. At a fact-finding hearing on January 16, 1992, he admitted to having committed acts constituting two counts of criminal mischief in the fourth degree.

A New York Custody Lawyer said that, on that date, his Law Guardian requested that the dispositional hearing be adjourned from Westchester to Brooklyn, as that was the appellant’s last county of residence. That application was joined in by the Westchester County Attorney, and the matter was transferred to Kings County for a dispositional hearing. The fact-finding order was entered on January 28, 1992.

A Westchester County Family Lawyer said that, the appellant appeared in the Family Court, Kings County, seven days later, on February 4, and was assigned a new Law Guardian. On that date, the presentment agency asked for continued remand for purposes of conducting a probation investigation and preparing a report, a mental health study, and an exploration of placement, and in order to ascertain the whereabouts of his parents or guardian and his status at Children’s Village at Dobbs Ferry. Over the Law Guardian’s objection, the court adjourned the matter for those purposes, and continued the remand because no parent or guardian was present in court, as well as because there was substantial probability that the appellant would not appear on the return date. The matter was adjourned to February 10, 1992, for disposition. Family Court Act § 350.1(1) provides that in cases such as this, the dispositional hearing shall commence 10 days after entry of the fact-finding order. That statutory 10-day period expired on February 7, 1992.

Published on: March 27, 2014

Court Decides Custody Case Where Child was Taken Into State Custody

by Stephen Bilkis

A New York Family Lawyer was born out of wedlock on 29 August 1977. Soon after her birth, she was placed voluntarily by her mother with the Department of Social Services for the City of New York. The department, in turn, authorized its agent, the Orphan Asylum Society of the City of Brooklyn, commonly known as the Brookwood Child Care Agency, to supervise the child’s care. A was placed in a foster home on 29 September 1977 but on 7 November 1977, A’s natural father, B., telephoned the Brookwood agency. He acknowledged paternity and requested a meeting with agency officials, which was held two weeks later. At that time, B expressed his desire to visit and financially support the child.

A New York Custody Lawyer said the representatives of Brookwood informed B that the mother, C, had adamantly refused to permit access to the child. B was instructed that, until such time as he formally established paternity, the agency would be bound by the mother’s instructions and he would not be allowed to see A. Brookwood provided B with the name and the address of the Kings County Family Court.

B persistently contacted Brookwood inquiring about A’s welfare, made a couple of visits and was informed that the matter of his paternity could go no further unless A’s mother participated in the process. The mother’s failure to co-operate was cited by B in explaining why he had been unable to establish paternity.

Published on: March 21, 2014

Court Deals with Tragic Case Involving Death of a 14 Month Old Child

by Stephen Bilkis

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.

Published on: March 20, 2014

Court Decides Domestic Violence Case

by Stephen Bilkis

A New York Family Lawyer said that on the night of 16 October 1985 police officers responded to a telephone call for emergency assistance made by the victim Mrs. A. When they entered Mrs. A’s apartment, they found Mrs. A and her husband, the defendant. Mrs. A, although conscious and alert, had been stabbed repeatedly and was bleeding heavily. The defendant, while not himself, lay unconscious upon the couple’s bed, wounded and covered with blood. Open prescription bottles were found in the kitchen. The windows to the apartment had been shut and the gas jets in the kitchen turned on. Mrs. A was taken to the hospital where she died of her wounds the following day. The defendant was also hospitalized, and although he remained comatose for more than two days he was eventually revived and was charged with his wife’s murder.

The defendant admits to inflicting injuries upon his wife but claims to have acted while his capacity for self-control was overborne by extreme emotional disturbance. In support of this contention, the defendant at his non-jury trial called two witnesses, his psychiatrist, Dr. A, who last saw him in treatment some nine days before the incident, and Dr. B, a court-appointed forensic psychiatrist.

A New York Child Custody Lawyer said the Dr. A testified that the defendant and his wife first visited her office on July 1983. Defendant complained of depression, withdrawal and inability to work, difficulty sleeping and nightmares. Dr. A finds defendant paranoid and persecutory. She prescribed sleep medications for both defendant and his wife. On early January 1984, Dr. A elicited from defendant that he was hyperactive and dyslexic as a child. He had a hard time keeping a job as an adult. Dr. A prescribed him anti-depressants. At the end of the same month, the defendant was observed to be all nervous and all afraid of a nervous breakdown. He picked and ate his hand. He was given Sinequan. On May of the same year, defendant claims that everyone was avoiding him and that he had nightmares at night so he was prescribed with increased dosage of sleep medication. On January 1985, Dr. A observed defendant to be acutely depressed and very anxious and panicky. Dr. A then prescribed tranquilizer, Atarax and sleep medication. On September, 1985, defendant was trembling and seemed to be deteriorating. He was very anxious and panicky and showed signs of panic paranoia and manifested his contemplations of suicide. On the 29th of September, his condition worsened and was afraid that he will kill himself. It was at this time when Dr. A learned that in his early adulthood he got hospitalized at a Psychiatric Center for one and a half years. Dr. A at this point diagnosed him with schizophrenia and prescribed Haldol, a drug for psychosis. On his October 9 visit, defendant was extremely anxious and he was “eating his hands all bloody”. Haldol medication was then increased. On their visit on October 4, he recounts a nightmare involving the Queen of Iran and her best friend where she was slicing her back all bloody. Mrs. A at this point was very worried of a breakdown so Haldol prescription was increased yet again. On October 7, days before the fateful event, defendant improved in that even if he was still biting his hand, he was no longer trembling and was more subdued.

Published on: March 19, 2014

Court Decides Case Regarding Child Endangerment Charges

by Stephen Bilkis

A New York Family Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered September 29, 2009, convicting him of sexual abuse in the second degree (seven counts) and endangering the welfare of a child (two counts), after a nonjury trial, and imposing sentence. A Kings Child Custody Lawyer said that, the motion by the nonparty-appellant to stay enforcement of an order of the Family Court, Kings County, dated November 30, 2010, and to continue care and custody of the subject child with the child’s maternal grandmother, pending hearing and determination of an appeal from the order. Application by the maternal grandmother to adjourn the return date of the motion to submit papers supporting the motion.

The issue in this case is whether defendant has been deprived of his constitutional right during the proceedings.

A New York Family Lawyer said the Supreme Court did not deprive the defendant of his constitutional right of confrontation by prohibiting him from cross-examining one of the complainants or eliciting testimony about that complainant’s prior sexual conduct. Contrary to the defendant’s contention, such evidence was not relevant to support his defense that this complainant’s testimony was fabricated. The defendant was given ample opportunity to develop evidence to support his position that this complainant had a motive to fabricate his testimony. Accordingly, evidence of this complainant’s prior sexual conduct was irrelevant and properly excluded by the Supreme Court under the rape shield law.