Divorce

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.

Published on: October 8, 2015

Respondent Contends Evidence Used Against Him was Incorrect

by Stephen Bilkis

This is an appeal by defendant from: (1) a judgment of the County Court, Nassau County, rendered August 15, 1963 after a jury trial, convicting him of (felony) murder in the first degree, murder in the second degree, robbery in the first degree, and of grand larceny and assault (both in the second degree), and after a jury recommendation, imposing sentence of life imprisonment on the conviction of murder in the first degree; and (2) from ‘each and every intermediate order’ made in the action.

After the crimes were committed, the defendant fled to California, where he was arrested and searched. Immediately after the arrest, the California police searched and found two revolvers in the automobile which the defendant had rented.

Published on: October 7, 2015

Petitioner Brings Lawsuit Regarding Licensing Issue

by Stephen Bilkis

In this summary license holdover proceeding commenced pursuant to Real Property Actions and Proceedings Law (“RPAPL”) § 713(7), petitioners seek to recover possession of the premises located at 173 Lake Drive, Wyandanch, New York (“the Subject Property”). Petitioners contend that the license of respondent to occupy the Subject Property has been revoked.

Most of the dispositive issues were undisputed. Petitioners are the owners of the Subject Property. In or about May or June 2007, Respondent moved into the Subject Property with her paramour petitioner’s son after learning she was pregnant with Nicholas. Mr. Robinson is the biological father of respondent. The parties acknowledged that there are no custody or child support matters pending.

Published on: October 6, 2015

Judge Decides Case Where Child is Hurt at a Family Camp Out

by Stephen Bilkis

This is a family case brought about during a school camping, then nine-year old child, sustained personal injuries at the Park while playing tag with some 15 fellow campers. The campers were waiting to be picked up at the conclusion of the camp day and were playing tag, as they often did, in a dedicated playground area which also contained a large outdoor play system or “Jungle Gym” comprised of interconnected and elevated walkways, bridges, ramps and ladders.

A witness testified that the tag games was generally conducted on the Jungle Gym – after the game had been ongoing for some thirty minutes, another camper began to chase after him in order to tag him. In an effort to escape, he ran “really fast” towards the Jungle Gym and then ran to an elevated bridge pathway on the equipment, bordered on both sides by a rail fence. He then climbed onto and/or mounted the top of the fence, which was capped by a horizontal rail, and secured himself by gripping the rail with his hands, allowing his legs to dangle freely below.

The witness allegedly sat on the fence in this fashion, “for like ten minutes” because, as he explained, the camper who was attempting to tag him waited “a really long time” anticipating that he might jump. Although the chasing camper ultimately departed and attempted to tag another person, Frank’s hands eventually got “sweaty” and he lost his grip and fell, causing him to strike the ground several feet below and sustain personal injuries, including two fractured wrists.

Published on: October 5, 2015

Administrator of Children’s Services Brings Suit Regarding Placement of Child

by Stephen Bilkis

In this proceeding under Family Court Act article 10, the New York City Corporation Counsel, on behalf of the Administration for Children’s Services, seeks leave of the court to allow the respondent’s placement with the Commissioner of Social Services [CSS] to lapse, in light of the respondent’s placement with the New York State Division for Youth [DFY].

This court placed the respondent, now fourteen years old, with CSS on October 22, 1991. The Commissioner of Social Services brought a neglect proceeding against the respondent’s father, after the father left respondent in the care of a girlfriend without making any provision for the child’s care. Respondent’s mother died in 1987. CSS worked with the father for the respondent’s return to his care for four years, during which time the father intermittently was incarcerated. In the summer of 1995, the 13 year old respondent ran away from foster care and took up residence with his father.

Published on: October 4, 2015

ASC Brings Action Against Mother for Severe Abuse

by Stephen Bilkis

On June 20, 2011, the Administration for Children’s Services (ACS) filed a petition against respondent mother alleging that she derivatively severely abused the subject child by committing reckless or intentional acts that evinced a depraved indifference to human life and caused serious physical injury to the subject child’s five-year-old sibling Jamar resulting in his death.

The subject child under the age of eighteen whose parent subjected the child to reckless or intentional acts committed under circumstances evincing a depraved indifference to human life, which resulted in serious physical injury to the child as defined in subdivision ten of section 10.00 of the penal law:

Published on: October 3, 2015

Court Decides Private Placement Adoption Action

by Stephen Bilkis

This private placement adoption action presents a number of intertwined legal issues that highlight the shortcomings of the private placement adoption statutes in New York State. The infant who is the subject of the case has now been in the home of the petitioners since February 21, 1998 without the benefit of a valid adoption consent from the parents or a currently valid pre-adoption certification order. The adoption agency that originally accepted custody of the child is no longer supervising this placement because it was not licensed in the state where the child was born. Additionally, the fees charges by the principals involved may not be entirely allowable under New York State law.

There is little statutory or caselaw guidance available to assist the court in unraveling these dilemmas, and few satisfactory remedies available for the obvious failures of those charged with caring for this child to follow the statutory requirements contained in the Domestic Relations Law. What seems apparent, however, is that along the way many purportedly well-intended people ignored the law, creating a situation that puts this adoption in jeopardy.

After an initial review of the adoption petition and the supplementary documents supplied by petitioner’s counsel with his letter dated August 3, 1999 the court issued a decision identifying legal issues of concern.