Queens

Published on: October 26, 2024

Property division terms in prenuptial agreement upheld. Schlosser v. Schlosser, 219 A.D.3d 1455 (N.Y. App. Div. 2023)

by Stephen Bilkis

In a case involving the division of property after a divorce, the defendant appealed an order from the Supreme Court of Queens County, which limited her share of proceeds from the sale of the marital residence to $700,000. The court also denied her request to have the residence recognized as her separate property.

Background Facts

The parties married on July 8, 2011, and had two children. Prior to their marriage, they signed a prenuptial agreement that outlined how their marital and separate property would be divided in case of divorce. In this agreement, a “termination event,” including divorce, would trigger the division of marital property equally between them. However, the marital residence and any debt related to it were excluded from this equal division provision.

Published on: October 5, 2024

While wife may not have car, court found no evidence of cruel and inhuman treatment in marriage. D.A. v. B.E., 2005 N.Y. Slip Op. 50281 (N.Y. Sup. Ct. 2005)

by Stephen Bilkis

In D.A. v. B.E., 2005 N.Y. Slip Op. 50281 (N.Y. Sup. Ct. 2005), the D.A. sought a divorce from his wife, B.E.A., under Domestic Relations Law Section 170(1) based on claims of cruel and inhuman treatment. The couple had been married since 2001, and D.A. argued that his wife’s lack of care for his deteriorating health endangered his well-being. The court had to decide whether the evidence provided was enough to grant the divorce on these grounds.

Background Facts

D.A. and B.E.A. were married on June 21, 2001, though they had lived together for several years prior to that date. At the time of the marriage, D.A. was already suffering from asbestosis. Over time, his health worsened. By 2003, he had been diagnosed with emphysema, and later that year, he underwent surgery for lung cancer, which required the removal of one of his lungs. His medical condition left him in chronic pain, requiring continuous pain management, including Percocet and, eventually, morphine.

Published on: June 10, 2016

Father Faces Consequences for Violating Custody Order

by Stephen Bilkis

The petitioner and respondent are the parents of a nine (9) year old child. The parties obtained a judgment of divorce in New Jersey on June 13, 2003 and, on consent, were awarded an order of joint legal custody for the child.

The father filed a violation petition and a petition for modification of the custody order on April 25, 2007. The father was seeking a specific and expanded visitation schedule. By stipulation the parties resolved the visitation issues between them prior to trial.

The mother had filed a petition to modify the custody order to provide for sole legal custody of the child on May 6, 2008. A trial was conducted in Kings County Family Court for the sole purpose of determining whether the existing order of joint legal custody should be modified to award sole legal custody to the mother.

Published on: April 30, 2016

Social Services Brings Child Neglect Case Against Grandmother

by Stephen Bilkis

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, 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.

The appeal from so much of the 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.

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 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 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:

Published on: January 13, 2016

Plaintiff Files Motion to Dismiss

by Stephen Bilkis

The petitioner/landlord, commenced this holdover proceeding to recover possession of the Section 8 leasehold premises from respondent/tenant, seeking to terminate the month-to-month tenancy. Tenant moves to dismiss the petition in lieu of answering upon grounds that the notice to terminate and petition are legally insufficient and that petitioner’s acceptance of rent after the notice to terminate was sent nullified the effect of the notice. Landlord opposes the motion to dismiss and maintains that it is untimely pursuant to Justice Court Act §1002.

The parties entered into a lease under the Section 8 Tenant Based Assistance Housing Choice Voucher Program, which was executed in October of 2003. Under paragraph 6 of Part A of the lease, the initial term ended on October 31, 2004, at which time the lease automatically renewed on a month-to-month basis. The lease provides that all notices made by owner or tenant must be in writing and makes no reference to landlord’s attorney or agent.

Published on: January 9, 2016

Grandfather Seeks Guardianship of Children

by Stephen Bilkis

In July, 1977, defendant Department of Social Services of the County of Nassau (hereinafter DSS) placed a four-year-old child and his sister in the foster home of defendant Margaret Toomer after the infant’s natural mother was sentenced to prison. Subsequent to placement, the DSS received several reports that the infant was being “beaten” and otherwise “abused” by the foster mother. DSS employees allegedly investigated the complaints and determined that the child should remain in guardian’s care pending completion of their investigation.

On or about November 17, 1978, the decedent’s grandfather and administrator of his estate, commenced the present action against the County of Nassau, the DSS and the guardian. The cause of action against the county defendants asserted, in effect, that they were negligent in placing the infant in guardian’s care, investigating the complaints of abuse against her, and failing to remove the infant from her care. Initially, the county defendants denied these allegations, and then, on April 30, 1984, some five years after the service of the answer, moved for leave to amend their answer to interpose the affirmative defense of immunity and for summary judgment dismissing the complaint insofar as it was asserted against them.