Divorce

Published on: November 5, 2015

Plaintiff has the burden to Establish Entitlement to Judgment

by Stephen Bilkis

In this action, plaintiff is seeking to foreclose on a consolidated mortgage dated November 15, 1988 given by it to East Coast and encumbering the property located at 1078-1080 Utica Avenue in Brooklyn. By deed dated August 15, 2007, East Coast sold the mortgaged property to 1080. During oral argument, 1080 represented that it was willing to bring the mortgage current to settle the action, which offer was accepted by plaintiff. After numerous adjournments, however, it appears that the parties were unable to agree to the amount due.

With regard to 1080, plaintiff avers that none of the six affirmative defenses interposed in its answer have any merit in truth or fact. In this regard, plaintiff asserts that 1080’s claim that plaintiff did not acquire jurisdiction over it is refuted by the receipt from the Secretary of State that establishes that the corporation was properly served. Plaintiff also contends that the second affirmative defense in which 1080 alleges that when the property was purchased on August 15, 2007, the principals were told that all of the existing mortgages were current, was untrue in that there were two mortgages on the premises that were in arrears at the time. In addition, the third affirmative defense in which 1080 alleges that plaintiff advised the corporation that the two brothers owning plaintiff were involved in a dispute, so that 1080 should not make any further payments on the mortgage, is not accurate. Alvin explains that his attorney had a conversation with 1080’s attorney during which it was stated that there was a dispute concerning the first mortgage, which is held by him and his brother, in their individual capacities, not the second mortgage that he is seeking to foreclose herein. Plaintiff further avers that the fourth, fifth and sixth affirmative defenses in which 1080 alleges that the instant action is barred by the doctrines of estoppel, waiver and/or unclean hands are legally insufficient to preclude an award of summary judgment in its favor.

Published on: November 4, 2015

Court Hears Unusual Family Law Case Involving Kidnapping

by Stephen Bilkis

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County, which granted the defendants’ motion for summary judgment dismissing the complaint.

A New York Family Lawyer said that the plaintiffs are members of an extended family who resided together in an apartment in Brooklyn. In 1996, a member of the family living in the apartment, was kidnapped by her former boyfriend. After several days, the boyfriend released the lady and threatened to kill her and her family if she did not resume their relationship. After her release, the New York City Police Department (hereinafter the NYPD) began providing 24-hour protection to the family at its residence. Approximately eight days later, the NYPD informed the family that it was discontinuing the 24-hour protection but would provide “special attention” to the family residence by hourly or half-hourly police visits.

Approximately 36 hours after the police implemented the “special attention” protection, Parker returned, held the family hostage for several hours, killed her and her grandmother, wounded several other family members, and eventually killed himself.

Published on: November 3, 2015

Court Hears Disturbing Case of Abuse and Neglect

by Stephen Bilkis

At issue on this appeal is whether the City of New York and a child protective service, defendant Louise Wise Services (LWS), sued herein as Louise Wise Agency, are insulated by immunity from liability for injuries allegedly sustained by children, both in connection with their judicial placement into the foster care system and subsequently, while in the custody of various foster homes. This Court concludes that although these defendants are insulated from liability with respect to the initial placement, they are answerable for any injuries sustained as the result of the failure to adequately supervise foster parents to ensure that children entrusted to their care are not subjected to mistreatment.

The plaintiffs Deborah (Debbie) and Sean M. are siblings, born on December 29, 1976 and January 16, 1980, respectively. They were removed from the child custody of their natural parents in February 1982 after it was determined that the five-year-old Debbie had contracted gonorrhea of the throat. The children were first placed with defendant Catholic Guardian Society and, after approximately two months, were transferred to the custody of defendant LWS. At her deposition, Debbie testified, inter alia, that in the first foster home, she was kept in her room “hour after hour.” In the second home, she was beaten and pushed into a glass, cutting her wrist; the foster mother told Debbie to say that she had fallen off a bicycle. Ms. Vasquez, the third foster parent, pulled her hair, struck her and routinely confined her to a room; a male child in the same home fondled her, at least once, between the legs. Debbie was then between five and seven years old. In another home on Long Island, the foster parent was not abusive, but the older children used to have “oral sex parties” with Debbie. She was ultimately returned to her mother’s home, where she was subjected to constant physical abuse by her mother and stepfather.

The complaint, dated September 5, 1985, alleges that plaintiffs were subjected to physical and sexual abuse, both within and outside the foster care system. The first and second causes of action allege that the City of New York and its agencies, the Human Resources Administration and the Department of Social Services (collectively, the City), failed to act on reports of abuse and neglect received since January 1977 by taking timely and appropriate action to remove, respectively, plaintiff Debbie M. and plaintiff Sean M. from the custody of their biological parents. The third and fourth causes of action allege that from the time they were placed in foster care in February 1982 until March 1984, plaintiffs were subjected to abuse and neglect in a series of foster homes and were denied adequate medical care. It is further alleged that after Family Court returned them to their mother’s home, plaintiffs were subjected to further abuse and neglect. The complaint asserts that defendants breached their duties to investigate complaints of abuse and neglect, to provide a clean and safe environment for the children and to furnish appropriate medical treatment.

Published on: November 2, 2015

Plaintiff Contends that Defendant is in Contempt of Court

by Stephen Bilkis

This is a motion by the plaintiff (hereafter wife) for an order 1) adjudging the defendant (hereafter husband) in contempt; 2) enforcing the parties’ judgment of divorce; 3) granting her a money judgment for accrued arrears; 4) awarding her counsel fees; 5) awarding her costs (damages) incurred as a result of the husband’s breach of the parties’ stipulation of settlement; and 6) directing the husband to comply with the provisions of the judgment of divorce relating to drug testing.

The parties were married on June 3, 1990. There are three children of the marriage, born in1991; 1992 and 1994. The wife is 45 and the husband is 52 years old. The husband attained a law degree in 1980. During the marriage, he was employed by a business owned by a trust established by his parents in 1960. He was paid over $220,000.00 in 2001 and $175,000.00 in 2002.

Published on: November 1, 2015

Wife Seeks Money From Defendant for Back Child Support

by Stephen Bilkis

In this plenary action in contract brought by a wife who seeks a money judgment for arrears in support payments due her under a separation agreement, the overriding issue is the proper interpretation of a provision of the agreement. Section 23 of the agreement specifically declares that the agreement is to survive any subsequent divorce decree obtained by either party, and it further provides that although the custody, spousal support and maintenance provisions of the separation agreement may be incorporated by reference into such a divorce decree, they are not to be merged within it. Some time following the separation, the husband obtained a bilateral Mexican divorce decree which incorporated those sections of the separation agreement but specifically declared that they were to survive the decree. Eventually, the wife deemed it necessary to seek an order of support in Family Court, Nassau County, for the $200 per week support and maintenance provided in the divorce decree pursuant to the terms of the separation agreement (see Family Ct. Act, § 422, subd. (b); § 461, subd. (b); § 466, subd. (c)). The husband countered with a request that the amount of support and maintenance be decreased, and, following issuance of several orders not pertinent to this appeal, Family Court ultimately decreased the amount of support and maintenance awarded by the divorce decree to $95 a week and issued a support order for that amount.

The wife then commenced this action in Supreme Court, Nassau County, seeking a money judgment in the amount of the difference between the support and maintenance payments established by the separation agreement and the reduced amount provided by the Family Court order. In response, the husband contended that pursuant to section 24 of the separation agreement, the modification by Family Court of the amount of support and maintenance due under the divorce decree served also as a modification of the separation agreement provisions pertaining to support and maintenance. Following a nonjury trial, Supreme Court ruled in favor of the husband, concluding that pursuant to section 24 of the separation agreement, the modification of the divorce decree by Family Court did in fact cause a similar modification of the separation agreement.

Published on: October 12, 2015

Foster Parent Seeks Reimbursement for Costs

by Stephen Bilkis

The petitioner is the foster parent of the subject child who was born October 2, 1984. By petition dated December 4, 1985, petitioner sought an order from Family Court directing respondent to pay for the costs of preschool and related services provided for the subject child by the Early Childhood Education Center (ECEC). The petition specified that David was orthopedically impaired and in need of preschool services, physical therapy and speech therapy. Respondent opposed the application, contending that David was not handicapped and that the services requested were not included within the scope of Family Court Act § 236.

Following a hearing, Family Court determined that David was a handicapped child as defined in Education Law § 4401(1), but that the requested preschool services, speech and physical therapy were not “special educational services” for which payment could be chargeable against respondent pursuant to Family Court Act § 236. The court characterized these services as medical or medically related within the purview of Public Health Law article 25, title V (Public Health Law § 2580 et seq.). That title authorizes the Department of Health to provide medical services for children with physical disabilities and permits a county supplying such services to seek recoupment from the person(s) legally charged with support of the child (see, Public Health Law § 2582). Family Court concluded that David was entitled only to transportation, tuition, maintenance or other nonmedical services, but not the costs of speech, occupational or physical therapy. Pursuant to Family Court Act § 233, the court nonetheless directed respondent to pay for the services requested in the petition, with the proviso that payment for all future services would only be made to duly certified entities pursuant to the provisions of Family Court Act § 233. Petitioner has appealed.

Initially, we observe that respondent acknowledges that the subject child is a handicapped child. The record further substantiates the subject child’s need for the physical and speech therapy requested. The issue presented is whether Family Court erred in finding as a matter of law that a preschool handicapped child’s speech, occupational and physical therapy are not “special educational services” within the meaning of Family Court Act § 236. There is no question that he would be entitled to these services, free of charge, if he were of school age. Handicapped children are constitutionally and statutorily entitled to a free education specially designed to meet their individual needs. The Federal Education for All Handicapped Children Act of 1975 entitles handicapped children to “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs”. By definition, “related services” expressly includes speech pathology and physical and occupational therapy, as well as the early identification and assessment of handicapping conditions (20 U.S.C. § 1401). Similarly, Education Law article 89 specifically provides that a handicapped child is entitled to the therapeutic services in question.

Published on: October 11, 2015

Court Looks at Issue Regarding Personal Jurisdiction

by Stephen Bilkis

This is a proceeding for support pursuant to Article 4 of the Family Court Act. The clerk of the court mailed a summons to the respondent, directing him to appear for a hearing. No attempt at personal or substituted service was made prior to the mailing of the summons. The respondent has appeared specially and moved, pursuant to Section 3211(a) (8) of the Civil Practice Law and Rules, to dismiss the petition on the ground that service by mail in the first instance does not comply with the requirements of Section 427 of the Family Court Act and, therefore, this court lacks jurisdiction over the person of the respondent.

Section 427 provides as follows: ‘(a) Service of a summons and petition shall be made by delivery of a true copy thereof to the person summoned at least three days before the time stated therein for appearance. If so requested by the respondent or by a parent or other person legally responsible for his care, the court shall not proceed with the hearing or proceeding earlier than seven days after such service. (b) If after reasonable effort, personal service is not made, the court may at any stage in the proceedings make an order providing for substituted service in the manner provided for substituted service in civil process in courts of record. (c) In a proper case, service of a summons and petition under this section may be effected by mail.’

A reading of Section 427 clearly indicates that service is to be made personally, and only upon failure to effect the same is substituted service in the manner provided for substituted service in civil process in courts of record’ to be allowed.

Published on: October 11, 2015

Petitioner Challenges NY Financing Methods of Public Schools

by Stephen Bilkis

Within the framework of this litigation are found dual challenges to New York’s method of financing elementary and secondary public school education. Proceeding upon separate but related theories, two groups of plaintiffs each seek a judgment declaring that such method of educational financing violates provisions of the federal and state constitutions. The group of plaintiffs responsible for instituting the action as it was originally constituted is, for the sake of clarity and convenience, referred to as the “Original Plaintiffs.” This group is comprised of 27 school districts situated in 13 counties and 12 school children, represented by their parents or guardians, who are students in public elementary or secondary schools operated by 7 of the plaintiff school districts.

After an action had been instituted by the original plaintiffs, a second group of plaintiffs sought and was granted the right to intervene in that action. That group is referred to as the “Plaintiffs-Intervenors” and sometimes as the “Intervenors.” It includes the Boards of Education of the cities of New York, Rochester, Buffalo and Syracuse; the City of New York itself; certain officials of the so-called “Big Four” cities; the United Parents Associations of New York, Inc.; and 12 school children, represented by their parents or guardians, who are students in public schools operated by the named city school districts. The Board of Education of the City of Buffalo was included as one of the original plaintiffs and thus is a member of both groups of plaintiffs.

Published on: October 10, 2015

Petitioner Says Law Violates Equal Protection Clause

by Stephen Bilkis

The plaintiffs, District Court Judges of the Suffolk County District Court, seek among other things, a judgment declaring the perpetuation of an unfavorable salary disparity between the plaintiffs and the Judges of the only other District Court in the State, that of adjoining Nassau County, violative of the equal protection provisions of our Federal and State Constitutions. As a supplementary item of relief plaintiffs also sought a judgment covering the resulting unconstitutional salary differential commencing with April 1, 1977, the date the Judges became employees of the State’s unified court system. 2 Named as defendant were the State, its Comptroller, the Chief Administrator of the Courts (both in this capacity and as the representative of the Administrative Board of the Judicial Conference) and the County of Suffolk.

The parties having stipulated that the facts were not in dispute, on a motion for summary judgment Supreme Court, Westchester County, sitting at Special Term, found merit in the constitutional claim and, in a judgment dated July 29, 1980, though it dismissed the complaint against the county, declared that the plaintiffs’ right to equal protection will have been violated unless the other defendants (hereinafter “the State”) took “all appropriate steps to end the salary disparity” prior to October 1, 1980. On cross appeals to the Appellate Division, Second Department, the State directed its attention to the declaration on constitutionality of the salary differential, while the plaintiffs addressed only the correctness of so much of the judgment as allowed the disparity to continue until October 1, 1980. The Appellate Division, 82 A.D.2d 441, 442 N.Y.S.2d 80, applying the rational basis test, as had the Supreme Court, and agreeing that the case presented a potential constitutional violation, modified the judgment by substituting April 1, 1982 for October 1, 1980 as the target date for elimination of the disparity and otherwise affirmed.

Published on: October 9, 2015

Petitioner Seeks Resolution Regardng Time Table for Election Law Cases

by Stephen Bilkis

It is well recognized that the time table for Election Law cases is extremely tight. Election proceedings have a preference over civil and criminal matters and thus the rules with regard to service are modified to reflect a method of service reasonably calculated to complete service in a timely fashion, but once ordered by the Court there must be strict compliance. In the instant proceeding, an ex-parte application was made to the Special II Justice for “So Ordered” subpoenas to be served on the witnesses and subscribing witnesses to the Respondent Petition, Volume 1, so that Petitioner could proceed with the case on the return date of the Order to Show Cause. Numerous people appeared pursuant to the subpoenas, however they reported to the courtroom of Justice also on the fourth floor, presumably because he had signed the subpoenas. The undersigned’s name appeared below the index number on the subpoena, however Justice’s part clerk apparently mistook the subpoenas as returnable in that part because another election law case is pending there. A call was made by someone in that part to Johnson’s counsel’s office rather than Petitioner’s and the people were told they were free to leave without ever having been referred to the undersigned’s part for the hearing. Both counsels were present before the undersigned during that morning, as the Order to Show Cause was returnable at 9:30 a.m., in this part.

It is conceded that respondent’s counsel brought those responding to the subpoena into a conference room to speak with them. An intern associated with Petitioner’s counsel was present, though no witness testified that he said or did anything. Respondent’s counsel admittedly unilaterally dismissed the people who answered the subpoena, without leave of the Court or authorization from Petitioner’s counsel.

On the record, respondent’s counsel advised the Court that he spoke to four people with regard to the subpoenas. He indicated that they showed him the subpoenas and he advised them that he “would make a motion to quash if they like and represent them for the purpose of the motion to quash because they were clearly not served properly.” At the time he was unaware of the Court Order setting forth the manner in which the subpoenas were to be served.