No: GO53597 Fourth Dist. Division Three
This case is an appeal by the mother of a three-year-old child, and the Social Services Administration (SSA). The mother’s petition for a Writ of Mandate from an order terminating reunification services and setting a Welfare Institutions hearing pursuant to code section 366.
Allegations
On August 31, 1992, the couple were in the process of buying a home. The husband’s father, a wealthy and successful entrepreneur, decided to help his son, daughter-in-law, and their young children in moving into the home. The husband’s father arranged a $47,000 transfer to the couple through an entity identified as the retirement plan corporation. There is no evidence before this court on how the money was advanced. There is no check from any bank account evidencing the advance of funds from corporation to the couple. At the time the father-in-law advanced the funds, he had the couple sign a mortgage on the house they were acquiring. The interest rate on the mortgage was one per cent.
For five years, the annual payment was never made. There is no evidence that the father-in-law sought payment of the annual amount from his son or daughter-in-law.
In 1997, the couple wanted to move and needed additional funds to do so. In another generous gesture, the husband’s mother advanced an additional $100,000 to her son and daughter-in-law top facilitate their purchase of a second home. The mother-in-law requested that the couple sign a mortgage for $100,000.
On October 28, 2001, plaintiff’s decedent, LM, fell in his apartment, which was located in the Narragansett Hotel, a residential hotel in New York City. A neighbor heard yelling coming from the apartment and called an ambulance. According to the Ambulance Call Report prepared by the EMS workers, he was found “lying in apt, full of feces.” The report indicated that he had fallen down in his apartment and was, inter alia, having difficulty breathing. It was also noted in the report that he had an elevated heart rate of 132 beats per minute, while in the care of the EMS workers. In addition to the information relating to his medical condition, the Ambulance Call Report contained LM’s address, date of birth and social security number. The Ambulance Call Report also listed JT, a close friend of LM, as his next of kin, and contained Ms. JT’s telephone number.
LM was taken by ambulance to the emergency room at Mount Sinai Hospital at approximately 1:55 p.m. The Ambulance Call Report, prepared by the EMS workers, was received by a staff member at Mount Sinai, who signed the report as the Hospital Receiving Agent. An Emergency Department, Patient Registration Form was prepared, at some point, after LM’s arrival at the hospital, and contained the same pedigree information as the Ambulance Call Report, i.e., address, date of birth and social security number. Mount Sinai’s Patient Registration Form also listed JT as LM’s next of kin, and contained her telephone number. A triage assessment was performed, and the records indicate that, at that time, LM was still experiencing shortness of breath and was noted to, among other things, have an elevated heart rate. The triage records state that LM was disheveled in appearance and full of feces. It appears that no treatment was administered in triage. Notwithstanding, he was given acute priority, and sent to an acute area of the emergency department. It is noted that the triage records also contain LM’s pedigree information.
LM was assessed by Dr. JJB, Jr., an attending physician, in the emergency room at Mount Sinai. He was found to be in respiratory distress, with edema, which is the swelling of the extremities. The emergency room records indicate that LM’s heart rate was a very high 160 beats per minute, at the time. Dr. JJB testified at his deposition that his preliminary diagnosis was congestive heart failure, as a result of, or a cause of, arterial fibrillation. Dr. JJB also entertained the possibility of pneumonia and heart ischemia. He considered LM to be a critically ill patient. Dr. JJB testified that he put a nonrebreather face mask on LM with the highest concentration of oxygen. The use of the nonrebreather face mask was documented in the emergency room records. According to Dr. JJB, he administered Diltiazem to reduce LM’s heart rate and “would typically” administer a dose of Lasix to get rid of extra body fluid. Dr. JJB further testified that he would have probably given LM an antibiotic in case there was pneumonia. Notwithstanding Dr. JJB testimony with respect to the administering of the aforementioned treatments, with the exception of the use of the nonrebreather mask, the emergency room records did not indicate that LM was provided with any of the other treatments discussed by Dr. JJB at his deposition. Additionally, Dr. JJB testified that nurses at Mount Sinai assisted in the emergency room treatment provided to LM, however, it does not appear that any nursing notes were generated in connection with such treatment.
The plaintiff and her two children are clients of the Nassau County Department of Social Services (Department). On or about May 29, 1971, she received a public assistance check from the Department. Several days later, while her possessions were being moved to a new place, she claims to have noticed that her handbag, containing the remaining proceeds of her grant, had disappeared.
Upon discovering her loss, plaintiff telephoned the local police to report the loss, notified the Department and requested that her grant be duplicated. The Department denied the request on the ground that duplicate grants are not issued by the Department in accordance with its applicable policy. Plaintiff thereupon instituted this Article 78 proceeding to direct the respondent Commissioner of the Department to issue a duplicate grant in replacement of the stolen amount. She asserts without contradiction that her destitute circumstances have compelled her to borrow funds from friends to supply her family with food, that she has been unable to pay rent in her new premises as a result, and that she and her family now face eviction.
Respondent asserts that plaintiff has failed to exhaust her administrative remedies, and that duplicate grants are not available in replacement of stolen funds. Respondent has called to the attention of the Court that substantial expenditures of County funds may be required to make the type of duplicate payments requested by petitioner, and that reimbursement for such expenditures has not been available from the State since July 1, 1969.
The People’s motion for an order disqualifying Defendant’s counsel and precluding use at trial of statements of prosecution witnesses taken by defense counsel or his associates is denied. Defendant’s cross-motion for an order dismissing the accusatory instrument as facially defective, in the interests of justice, or on account of the People’s failure to be ready for trial within the prescribed time, and suppressing statements he made to law enforcement officials in violation of the procedures enunciated in a case, is denied as noted below.
A Nassau lawyer said that the People commenced this action in November 2005 by the filing of what is labeled an information that accuses Defendant of sexual abuse in the second degree. By the factual part (see CPL 100.15[3]), the complainant, a Detective attests that “on 11/19/2005 and about 11:00 a.m. while at a Freeport, the defendant did enter the bedroom of the mentally retarded 16 year old female and did expose his erect penis. Said defendant did take the victim’s hand in his own and put the victim’s hand on his erect penis and did masturbate himself to ejaculation with the victim’s hand.”
“The above is based on information and belief. The source of said information and the basis of the belief is the interview and statement of the victim and the interview and statement of admission of the defendant.”
In this family case, a condemnation proceeding is the just compensation to be awarded to claimant, for the taking of several parcels of property located in Queens County. The condemnee, took title to the subject parcels on February 29, 1996, for the creation of a Park. The court viewed the property on April 27, 2006 and this non-jury trial took place on July 12, 14, 17 and 18, 2006.
In its Appraisal Report dated June 30, 2005, claimant values the property at $10,000,000. In so finding, it determines that the total lot area of the subject property is 877,304 square feet; the majority of it is underwater, with additional property located within paper streets, i.e., streets that are mapped but are not physically improved. Claimant describes the property as being relatively level and located in Malba, “a prime area” that is “an upscale community that includes several waterfront mansions,” consisting of predominantly residential uses, including one- and two-family homes and several complexes of attached row houses. Albert further notes that approximately 88% of the land in the area is improved with residential structures, of which 75% are one- and two-family homes, 8% are walk-up apartment buildings and 5% are condominiums and elevator buildings.
In reaching its valuation, the evaluator adopts the findings of the claimant’s zoning expert, who relies upon the opinion of a licensed architect, who concludes that the paper streets could be demapped.
Mr. NK, respondent in a Family Court proceeding, petitions for a judgment under Article 78 of the CPLR prohibiting the Judges of the Family Court, of Nassau County, or any of them, from proceeding with a hearing on a complaint under Article 8 of the Family Court Act made by JK against the petitioner.
Petitioner states that JK, the complainant in the Family Court, and he were formerly husband and wife but that the marriage was dissolved by a divorce in favor of JK, that JK resides with their two children in the City of Long Beach, that JK instituted the proceeding in the Family Court, Nassau County, under Article 8 of the Family Court Act, and that the provision of the Act under which he proceeds reads in part as follows:
“A proceeding under this article is originated by the filing of a petition: ‘(a) alleging that the respondent assaulted his spouse, parent, child, or other member of the same family or household, or engaged in disorderly conduct toward any such person.”
In a neglect proceeding pursuant to Family Court Act. Article 10, the maternal grandmother appeals from an order of the Family Court, Kings County, dated April 7, 2009, which suspended her visitation with the subject child and directed the Administration for Children’s Services to instruct the subject child’s school not to provide any information to her or allow her access to the subject child. Assigned counsel has submitted a brief in accordance with one case decided by the court, in which he moves to be relieved of his assignment to prosecute this appeal.
In child protective proceedings, counsel said the Commissioner has the burden of establishing abuse and neglect by a preponderance of the evidence. The statute provides that “proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect”. Upon proof to establish a prima facie case, the respondent must offer a satisfactory explanation to rebut the evidence of neglect. In rendering its decision, the court must set forth the specific grounds for its finding that the child had been abused or neglected.
Counsel said an order as suspended visitation between the maternal grandmother and the subject child must be dismissed as academic because that portion of the order has been superseded by a permanency hearing order dated June 11, 2009, awarding the maternal grandmother visitation with the subject child in accordance with the permanency plan.
Legal counsel said that recitation, as required by CPLR 2219(a), of the papers considered in the review of the cross motion of the Attorney for the Children seeking, inter alia an order granting the mother temporary child custody of the parties’ three younger children, and directing that the transcripts of the in camera interviews with the child conducted by the Court on April 30, 2010 remain confidential.
This is a custody proceeding brought on by the mother’s petition for custody of three of the parties’ four children. The children have resided primarily with their father since the beginning of November 2007 when, according to the father, the mother left but, according to the mother, the father locked her out of the family home.
On April 12, 2010, the Attorney for the Children citing child-protective concerns, requested that the Court interview the children in camera. Counsel for the mother and the father did not object, although the father’s attorney asked to be provided a transcript of the interviews, to which the AFC strenuously objected. I determined, without objection, to hold the in camera interviews but to withhold the transcripts of those interviews from the parents and their attorneys in order to afford the AFC an opportunity to file a motion to keep them confidential and counsel for each parent to respond. On April 30, 2010, I met separately the children. The children’s attorney was present during each of the interviews; the parents and their attorneys were not.
A notice of Motion/Order to Show Cause/ Petition/Cross Motion and This court is called upon to determine (1) whether the attorney for the defendant’s application to be relieved as attorney of record should be granted; (2) if the defendant’s applications brought pro se while still represented by counsel are properly before the court; (3) whether or not the defendant is entitled to a 30 day stay of all proceedings in the event counsel is relieved pursuant to CPLR 321(c); (4) whether or not the defendant is entitled to a second court appointed counsel pursuant to Judiciary Law section 35(8)(b) on the issues of child custody, visitation and an order of protection; (5) whether or not the defendant should have the benefit of a court assigned interpreter; (6) the sua sponte sealing of photographs of the child’s genitalia and buttocks which were annexed exhibits to defendant’s order to show cause.
The defendant is presently represented by an attorney of her own choosing. Defendant’s counsel moved by order to show caused dated November 5, 2010, to be relieved. The counsel seeks to be relieved as the attorney of record based upon an irretrievable breakdown in the attorney client relationship. The defendant submits in her most recent application disparaging statements about him and his representation of her. In open court, on November 17, 2010, defendant stated she wished to discharge his attorney and asked for the appointment of counsel pursuant to Judiciary Law section 35(8)(b).
The said counsel is defendant’s third attorney of record. Previously, defendant was represented by pro bono counsel, a New York City law firm. On March 10, 2010, a consent to change attorney was filed and the defendant was substituted as attorney pro se. On May 5, 2010, an attorney was appointed by the court as the attorney for the defendant pursuant to the Judiciary Law on the issues of child custody, visitation and an order of protection. Although not initially disclosed to the court by defendant, this attorney simultaneously represented defendant in Family Court. On August 10, 2010, defendant was again substituted pro se for this attorney on consent. The attorney had moved by order to show cause, dated August 13, 2010, to be relieved. That application was rendered moot based upon the pro se substitution and the fact that defendant already retained private counsel to wit: the counsel unbeknownst to the court assigned attorney. After having discharged the court appointed counsel and hired private counsel, defendant seeks to now have the court appoint her another attorney. The counsel represented the defendant in an all-day temporary custody hearing on October 7, 2010, before this court. The court after the hearing awarded temporary custody of the infant issue to the father. He is the more stable parent, at the present time, for the care of the child. As a result of the hearing the court believes that plaintiff was a victim of domestic violence; on one occasion he sought medical assistance at an emergency room. Apparently, shortly before that hearing, defendant appeared in the Family Court, Queens County, pro se, and obtained an ex parte temporary order of protection against plaintiff. That petition indicated that there were “no prior applications” for an order of protection notwithstanding the present application in this matrimonial action or the two (2) prior Kings County Family Court applications for orders of protection which were withdrawn on the record in open court after consolidation on consent. Upon disclosure to this court of the defendant’s application in Queens County, this court from the bench contacted the Referee from Queens Family Court who indicated she has no knowledge of an existing matrimonial action. This court informed counsel and the parties’ of this on the record in open Court. Upon written application, this court, ex parte, granted consolidation of the Queens Family Court matter and ordered a hearing on November 17, 2010. That hearing was adjourned so the counsel could make the present application to be relieved because of defendant’s alleged actions and alleged failure to cooperate with him. Defendant also brought on two (2) orders to show cause pro se while still being represented by counsel and not informing him of her intent to do so. On November 22, 2010, defendant submitted an application for poor person status and filed a third pro se order to show cause.
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