Divorce

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: May 5, 2015

Court Discusses Child’s Eligibility for State Assistance Programs

by Stephen Bilkis

Under the Federal public assistance program called Aid to Families with Dependent Children (AFDC), family income is considered in determining a child’s eligibility for relief. All of a natural father’s income is typically deemed available to his child, but the situation is more complicated where stepfathers are found. The Federal Regulations allow consideration of all of the stepfather’s income in estimating the child’s eligibility only if the applicable State law establishes a general obligation on all stepfathers to support their stepchildren, but not where the stepfather is liable to support only a stepchild likely to be a public charge.

In this decision we find, after reconciling a confusing statutory scheme, that in New York there is no general obligation of stepfathers to support their stepchildren, and that these support obligations only occur where the child is otherwise to become a public charge, or under special circumstances of agreement or estoppel. Accordingly, the stepfather’s entire income is not automatically figured to the stepchild, but as explained below, on familiar social services principles, only so much of it as is actually devoted to the child.

Published on: May 4, 2015

Court Discusses Outcome of Juvenile Hearing

by Stephen Bilkis

The respondent has moved to vacate this Court’s order dated February 21, 2007 which, upon his consent, extends his placement with the New York State Office of Children and Family Services (“OCFS”) as a juvenile delinquent for twelve months and directs that OCFS continue respondent’s present placement with L & W, an authorized agency within the meaning of Social Services Law §371 (10).

In support of the motion to vacate the Court’s order extending his placement with OCFS for L & W, respondent contends that: (i) the Family Court was without jurisdiction to extend placement; (ii) the proceedings were defective in that the Court did not have the authority to reconvert the proceeding from a Person in Need of Supervision (“PINS”) proceeding to a juvenile delinquency proceeding; and (iii) even assuming that the Court had jurisdiction to extend placement with OCFS that placement could not be extended beyond his 18th birthday without his consent.

Published on: May 3, 2015

Court Decides of License for Foster Care Should be Revoked

by Stephen Bilkis

An application pursuant to CPLR Article 78 by petitioners PJB and VJB to, inter alia, annul the determination of respondent SCO Family of Services (SCO) dated May 6, 2010, which concluded that petitioners’ residence located at 419 Pine Place, Uniondale, New York could no longer be maintained as a foster home and would be closed effective May 28, 2010, is determined as follows.

Motion by respondent SCO pursuant to CPLR 1001(a) and 1003 to dismiss the proceeding for failure to join an indispensable party is determined as follows.

Since in or about 2005, petitioners, who allege that they possess a certificate for the care of children at board with the Nassau County Department of Social Services, have operated a foster home for the care of children at 419 Pine Street, Uniondale, New York under the auspices of respondent SCO,1 a not-for-profit foster care agency authorized by the New York State Office of Children’s and Family Services to provide foster care services.2 According to petitioners, they have successfully housed several children since in or about 2005 when their relationship with the Salvation Army began.

Published on: April 7, 2015

Plaintiff Asks Court for Leave to Serve Defendant via Publication

by Stephen Bilkis

In February 1971, plaintiff made application to this Court for leave to serve the defendant by publication and for permission to proceed as a poor person. Though service was made on the County of Nassau, they neither appeared nor opposed the application. By decision dated February 17, 1972, this Court granted the application to serve the defendant by publication, but denied the application to proceed as a poor person. The Court held therein that the moving papers were deficient.

‘Plaintiff sets forth in her affidavit that she has been employed by the Westbury Board of Education as a secretary at an annual salary of $5460.00 since October 1971 and in addition thereto received supplemental public assistance to augment her income to spend upon such work related expenses, such as baby-sitting, car fares, lunches, etc., but nowhere in the moving papers does she set forth the amount of supplemental income.’

Published on: April 6, 2015

Court Listens to Case Dealing with Judicial Economy

by Stephen Bilkis

This personal injury action, stemming from a multi-vehicle collision, raises interesting issues regarding consolidation, venue, comity, judicial economy, the avoidance of forum shopping, and a seeming conflict between the “first-in-time rule” and the convenience of material witnesses where actions have been filed in two or more counties concerning the same set of facts. The novel aspect of this motion to consolidate and to transfer venue is that prior to the institution of the aforecaptioned action in this Court, the second lawsuit in this litigation, a Justice of Supreme Court, Kings County, transferred the first action to Suffolk County.

The plaintiff DD, a resident of Bergen County, New Jersey, was allegedly injured on November 16, 2008, at 4:45 A.M., while driving in Kings County, New York, on the Brooklyn-Queens Expressway near the Williamsburg Bridge. According to a police accident report, taken by the New York City Police Department, the accident involved four vehicles, and two persons were allegedly injured.

Published on: April 5, 2015

Court Discusses Family Succession Rights

by Stephen Bilkis

The petitioner commenced this proceeding pursuant to Article 78 of the CPLR to review a determination of the respondent, City of New York, Department of Housing Preservation and Development (hereafter referred to as “HPD”), which purported to deny Petitioner’s appeal for family succession rights pursuant to 28 RCNY§3-02(p) concerning a Mitchell-Lama apartment Petitioner occupies with his wife and nine children. The apartment Is owned and operated by the respondent, Kent Village Housing Company, Inc. (hereafter referred to as “Kent Village”) and is known as Apartment 4D at 116 Clymer Street, Brooklyn, New York (hereafter referred to as the “Apartment”). In his petition Petitioner alleges that he never applied for family succession rights to the Apartment Instead,

Petitioner contends that he Is a co-tenant who has been named on the lease for the Apartment since In or around 1997. Petitioner further alleges that he resides In the Apartment based upon his own rights as a co-tenant and that there Is no statutory basis for HPD to Institute, prosecute or determine any proceedings In Petitioner’s name for family succession rights to the Apartment Therefore, Petitioner argues that HPD’s determination denying him family succession rights and authorizing his eviction from the Apartment Is arbitrary and capricious, an abuse of discretion, affected by errors of law and in violation of lawful procedure. Accordingly, Petitioner seeks a Judgment annulling and vacating HPD’s determination and declaring Petitioner’s rights vis-a-vis HPD and Kent Village with respect to the Apartment

Published on: April 4, 2015

Petitioners Claim Previous Court Determinations Were Arbitrary and Capricious

by Stephen Bilkis

In this proceeding was instituted pursuant to Article 78 of the CPLR by Mr. and Mrs. Banks, public assistance recipients, compelling Respondents to pay the balance owed by the Banks for the installation of a heating system in their home.

Mrs. Banks is the fee owner of the home where she and her husband live together with their six minor children. In 1965, before the Banks were receiving public assistance, they ordered on time payment the installation of a heating system for the second floor of their home to make that floor habitable for the children of their burgeoning family during the winter. They have been receiving public assistance continuously since 1966.

Published on: April 3, 2015

Petitioners Seek to Renew a Motion to Dismiss

by Stephen Bilkis

Upon the foregoing papers, petitioners individually, as preliminary executor of the estate of the decedent and as the vested beneficial owner of shares of the respondent 4C Foods Corp. held by certain trusts, moves for an order: (1) pursuant to CPLR 2221 granting leave to renew respondent’s motion to dismiss the Petition that was granted in this court’s order dated December 5, 2012, and upon renewal, denying respondent’s motion to dismiss the petition; and (2), pursuant to CPLR 3025, granting petitioners leave to file and serve an amended petition.

Petitioners’ motion is denied with respect to petitioners’ claims pursuant to Business Corporation Law §§ 623 and 806. With respect to the proposed causes of action premised on the breach of the implied covenant of good faith and fair dealing and breach of fiduciary duty, the motion to amend is denied, but with leave to file an amended pleading containing such causes of action upon the following events: (1) the executor of the estate of the decedent, is barred from transferring voting shares individually; (2) these voting shares are purchased by respondent, its directors and or its majority shareholders; and (3) such causes of action are not otherwise rendered moot by any determination made in the Nassau County declaratory judgment action. The motion for leave to file an amended petition is granted with respect to the proposed declaratory judgment claim in which petitioner seeks a declaration that the January 11, 2013 notice addressing the transfer of voting shares formerly controlled is a nullity. The special proceeding is converted to a declaratory judgment action, but any further proceedings in the action are stayed pending the determination of the Nassau County declaratory judgment action.

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.