Divorce

Published on: February 7, 2016

Court Looks at Material Issues of Fact in Case

by Stephen Bilkis

In this contested probate proceeding, the proponent, MP, moves for an order granting summary judgment pursuant to CPLR 3212, dismissing the objections filed by the objectant, RP, and admitting the propounded instrument to probate. RP opposes the motion on the ground that material issues of fact exist.

RP cross-moves for an order: (1) pursuant to SCPA 205, dismissing the probate proceeding on the ground that the decedent was not a domiciliary of Nassau County at the time of his death; (2) pursuant to Article 45 of the CPLR, prohibiting MP from introducing into evidence certain DVDs that MP alleges to be recordings of the decedent; and (3) pursuant to CPLR 4519, prohibiting MP and EP, who is the decedent’s ex-wife and the mother of MP and RP, from testifying at trial as to any statements allegedly made by the decedent. MP opposes the relief requested by RP.

Published on: February 6, 2016

Court Looks at the Issue of Kinship

by Stephen Bilkis

In this accounting of the Public Administrator, the issue of kinship was referred to a court attorney/referee pursuant to SCPA 506. A hearing was conducted and various documents were admitted into evidence, including the purported family tree. All parties stipulated to waive the report of the referee and to allow the kinship issues to be decided by the court based upon the transcript of the hearing, the documentary evidence and the arguments made by the claimants and the guardian ad litem representing the interests of unknown distributees.

JP died on March 1, 2005, a resident and domiciliary of Nassau County. Letters of administration issued to the Public Administrator on July 1, 2005. The summary statement shows charges to the accounting party of $127,103.26.

Published on: February 5, 2016

Infant Based Plaintiff Sues for Exposure to Lead Paint

by Stephen Bilkis

The motion of defendant the City of New York (hereinafter the “City”) for summary judgment and dismissal of the complaint and cross claims against it is denied.

This is an action to recover damages for personal injuries allegedly sustained by the infant plaintiff, JP, due to exposure to lead-based paint between March 1992 and May 1994, while in foster care with defendants at their residence located at 22 Winter Avenue, Staten Island, New York.

Published on: February 4, 2016

Plaintiff Brings a Suit for Declaratory Judgment

by Stephen Bilkis

Plaintiffs commenced the within declaratory judgment action seeking a declaration that the emergency rule is null and void, ultra vires and unconstitutional, as a taking of property without just compensation. The complaint also alleges that the rule violated Real Property Law § 226-b which regulates the assignment of leases; Real Property Law § 235-f which creates a right of occupancy but not leasehold rights for roommates; Domestic Relations Law § 11 which sets out the requirements and means for the solemnization of a marriage; and the administrative limitations in the Omnibus Housing Act of 1983, and the State Administrative Procedure Act.

By order to Show Cause dated November 13, 1989 plaintiffs moved in Supreme Court, Albany County, for a preliminary injunction enjoining the implementation of the emergency rule. An order to show cause was granted, which restrained the DHCR from “implementing or effectuating said Emergency Rule, or in any other manner promulgating, issuing, implementing or effectuating the terms, conditions or requirements thereof,” but made the motion returnable in Supreme Court, New York County.

Published on: February 3, 2016

Court Decides Permanent Custody of Child Based on Child Abuse Allegations

by Stephen Bilkis

The petitioner filed the instant petition seeking an order of child support against the respondent. A hearing was held with respect to the petitioner’s application. The petitioner’s application is denied.

On April 1, 2002, the petitioner, Frances W., filed a petition against the respondent, Steven M., seeking support for her niece, Melissa M., who is the daughter of the respondent. The support petition was originally dismissed on September 24, 2002 by a hearing examiner in Queens Family Court. By order of a judge of the Queens Family Court, however, the order of dismissal was vacated on November 13, 2002 and the matter remanded back to the hearing examiner to enter a temporary order of support in accordance with Family Court Act § 434 and for further proceedings. On March 13, 2003, that same Family Court judge stayed the proceedings on the support petition until such time as a court enters an order providing for temporary or permanent custody or guardianship of the subject child. As a result, there is no temporary order of support in place as to the instant petition.

Published on: February 2, 2016

Petitioner Files Claim to Extend Placement in Foster Home

by Stephen Bilkis

This extension of placement proceeding under Section 1055 of the Family Court Act raises questions as to the perimeters of the Family Court’s jurisdiction.

MR was born on June 19, 1982. Less than two months later, she was remanded to the Commissioner of Social Services who has had responsibility for her since that time. On November 22, 1982, after a finding of neglect, MR was placed with the Commissioner for 18 months. On December 8, 1982, the Commissioner placed the child with St. Christopher’s Home for Children, an authorized agency, which in turn placed her with F Parents, where she continues to reside.

Published on: January 20, 2016

Court Decides if Case Against Social Services can be a Class Action

by Stephen Bilkis

This Article 78 proceeding raises the questions whether (1) the County Commissioner of Social Services has discretion as a matter of policy and without regard to the facts of the particular case to refuse a special grant to an aid to dependent children recipient who claims that she and the children are destitute because cash has been stolen from her and (2) whether the proceeding can be maintained as a class action.

The petition alleges that petitioner is the mother of four children, that she receives public assistance in the category of Aid to Dependent Children, that on July 31, 1971 she received a check issued by the Department of Social Services in the amount of $398.00 which she cashed at the bank where she spent $3.00, putting the remaining $395.00 in an envelope in her pocketbook, that she went to the laundromat and then back to the bank and when she sought to pay for the purchases then made could not find the envelope or the money, that she reported her loss to the Department of Social Services and the police, that she was told by the Department that nothing could be done, that its failure to act on petitioner’s request results from its policy of refusing to give emergency aid or to duplicate stolen checks, that without the issuance of a duplicate grant of $395.00, petitioner and her children face exhaustion of their food supply and eviction from their rented home.

Published on: January 18, 2016

Respondent’s Placement Lapses at New York State Division of Youth During Proceedings

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: January 17, 2016

Court Rules on Issue Related to Private Placement Adoption

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.

Published on: January 16, 2016

Child Services Alleges Abuse of Child by Mother

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: