Queens

Published on: November 9, 2015

Petitioner Moves for Dismissal of Charges

by Stephen Bilkis

In this family case, defendant moves this Court for an order, pursuant to Criminal Procedure Law § 170.30(1)(f), dismissing the charge of Assault in the Third Degree on the grounds that there exists a legal impediment to conviction.

The Complainant executed a misdemeanor information on December 8, 1990, alleging that her former husband intentionally caused physical injury to her on December 8, 1990 at 6:10 p.m. in the Village of Hastings-on-Hudson, New York.

On December 10, 1990, Complainant filed a Family Offense Petition in the Family Court of the State of New York, County of Westchester, alleging that Respondent on December 8, 1990 committed acts against her which constituted harassment and assault in the third degree. The specific allegations of the petition concerned the same incident that formed the basis for the misdemeanor information.

Published on: November 3, 2015

Court Hears Disturbing Case of Abuse and Neglect

by Stephen Bilkis

At issue on this appeal is whether the City of New York and a child protective service, defendant Louise Wise Services (LWS), sued herein as Louise Wise Agency, are insulated by immunity from liability for injuries allegedly sustained by children, both in connection with their judicial placement into the foster care system and subsequently, while in the custody of various foster homes. This Court concludes that although these defendants are insulated from liability with respect to the initial placement, they are answerable for any injuries sustained as the result of the failure to adequately supervise foster parents to ensure that children entrusted to their care are not subjected to mistreatment.

The plaintiffs Deborah (Debbie) and Sean M. are siblings, born on December 29, 1976 and January 16, 1980, respectively. They were removed from the child custody of their natural parents in February 1982 after it was determined that the five-year-old Debbie had contracted gonorrhea of the throat. The children were first placed with defendant Catholic Guardian Society and, after approximately two months, were transferred to the custody of defendant LWS. At her deposition, Debbie testified, inter alia, that in the first foster home, she was kept in her room “hour after hour.” In the second home, she was beaten and pushed into a glass, cutting her wrist; the foster mother told Debbie to say that she had fallen off a bicycle. Ms. Vasquez, the third foster parent, pulled her hair, struck her and routinely confined her to a room; a male child in the same home fondled her, at least once, between the legs. Debbie was then between five and seven years old. In another home on Long Island, the foster parent was not abusive, but the older children used to have “oral sex parties” with Debbie. She was ultimately returned to her mother’s home, where she was subjected to constant physical abuse by her mother and stepfather.

The complaint, dated September 5, 1985, alleges that plaintiffs were subjected to physical and sexual abuse, both within and outside the foster care system. The first and second causes of action allege that the City of New York and its agencies, the Human Resources Administration and the Department of Social Services (collectively, the City), failed to act on reports of abuse and neglect received since January 1977 by taking timely and appropriate action to remove, respectively, plaintiff Debbie M. and plaintiff Sean M. from the custody of their biological parents. The third and fourth causes of action allege that from the time they were placed in foster care in February 1982 until March 1984, plaintiffs were subjected to abuse and neglect in a series of foster homes and were denied adequate medical care. It is further alleged that after Family Court returned them to their mother’s home, plaintiffs were subjected to further abuse and neglect. The complaint asserts that defendants breached their duties to investigate complaints of abuse and neglect, to provide a clean and safe environment for the children and to furnish appropriate medical treatment.

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 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 2, 2015

Petition Alleges that Mother Unjustly Receives Public Assistance

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: September 1, 2015

Court Hears Guardianship Proceeding

by Stephen Bilkis

The petition presented in this Art. 81 guardianship proceeding raises two questions that this court has not previously addressed. The first is whether it is appropriate for a facility to petition the court solely for the appointment of a special guardian of the property of an alleged incapacitated person residing in its facility where the sole power sought is to complete the Medicaid application for the facility. The second question that follows is then where there is no healthcare proxy executed by the alleged incapacitated person does the Family Healthcare Decisions Act vitiate the need for a personal needs guardian. Here the court finds that a residential facility/hospital should not petition the court for the appointment of a special guardian for the sole purpose of seeking Medicaid benefits when the patient is clearly incapacitated and clearly needs a guardian of the person as well. For the reasons stated herein the court finds that the Family Healthcare Decisions Act is not a substitute for the appointment of a guardian of the person pursuant to Art. 81 of the Mental Hygiene Law.

The petitioner herein is the administrator of the A. Holly Patterson extended care facility located at 875 Jerusalem Avenue, Uniondale, N.Y. where the alleged incapacitated person, AG, currently resides. He had been taken there after being treated at Nassau University Medical Center for a cerebral vascular accident (also known as CVA). AG is 80 years old and suffers from right hemiparesis, cognitive deficits, and seizure disorder, as well as dementia. He requires a gastrointestinal feeding tube for nutrition due to dysphagia, and is incontinent of bowels. He is bed bound and needs assistance with all activities of daily living. However, the court evaluator indicated in his report to the court that AG had the ability to communicate his wishes and therefore the hearing was held at the facility and AG was present.

Petitioner originally limited its application under Article 81 of the Mental Hygiene Law for the appointment of a special guardian of the property while acknowledging in their application that AG is an incapacitated person. When the court inquired prior to the hearing as to why petitioner did not also move for the appointment of a guardian of the person, petitioner stated that they believed it was not necessary because DA, a son of the alleged incapacitated person, had been located locally and it was the facility’s position that because a surrogate was available the Family Healthcare Decisions Act allows for that surrogate to make all medical decisions for adult patients as needed. Further, even if no surrogate had been found the petitioner’s stated position was that under the Family Healthcare Decisions Act the hospital may make medical decisions for the patient. Therefore, a personal needs guardian was not needed.

Published on: August 30, 2015

Husband and Wife Dispute Separate Property

by Stephen Bilkis

The petitioner and respondent were married on September 26, 1996, and were living together, with their children, in the marital residence located at 245 Hallman Avenue, Oceanside, New York 11572. A divorce proceeding was brought 8 years later in 2004, and the divorce was finalized by a judgment of divorce rendered in the Nassau County Supreme Court on September 8, 2008. The judgment of divorce regarded the marital domicile as a “separate property of [the husband].” Furthermore, it was adjudged that the wife must “remove from the former marital residence no later than 3 months following the entry of final judgment.” If the wife was unable to obtain suitable housing in the area, the judgment of divorce provided that respondent may “move for a reasonable extension of this deadline upon showing a bona fide diligent effort.” However, before the divorce was finalized, petitioner claims that respondent entered into possession of the marital residence by way of an oral license made on October 31, 2007, which expired on March 30, 2009. Thus, accordingly, on March 19, 2009, a 10-day notice to quit was served upon the respondent, requiring her to vacate from the subject premises by March 30, 2009. The respondent, however, has failed to surrender possession of the marital residence.

By motion dated July 12, 2009, the respondent, and now former wife of petitioner, seeks to dismiss the instant holdover proceeding instituted by her ex-husband. The respondent asserts three affirmative defenses in which she denies that an oral license agreement was entered into on October 31, 2007 and alleges that she is not a licensee, but a tenant, and thus, cannot be evicted in a summary proceeding. Additionally, respondent claims that she is entitled to a 30-day notice to quit, as opposed to a 10-day notice to quit. According to the affidavit submitted by the respondent, the respondent claims that the petition is defective in several respects: (1) The petitioner failed to serve respondent with a 30-day notice to vacate making the petition materially defective. (2) The petitioner alleged that respondent is a tenant, but served only a 10-day notice to quit. (3) In the alternative, the proper forum to decide all issues of possession is the Nassau County Supreme Court.

Published on: August 27, 2015

Court Rules on Hearsay Allegations

by Stephen Bilkis

The court said that for an order dismissing paragraph 3B of the violation petition as jurisdictionally defective pursuant to Family Court Act §311.2, in that it allegedly is not “sufficiently supported by non-hearsay allegations,” and further that it is not a condition of the Respondent’s current order of probation; and for a dismissal of the entire violation petition “for reasons of res judicata;” and also pursuant to Family Court Act §315.2 for such other and further relief as the Court may deem appropriate.

Respondent was initially arrested on or about May 26, 2004, upon a petition that alleged acts which, if the Respondent were an adult, would be coercion in the first degree in violation of §135.65 of the Penal law, a class D felony and coercion in the second degree in violation of §135.60 of the Penal Law, a class A misdemeanor. A fact-finding hearing commenced on May 30, 2004 and concluded on July 21, 2004 with respect to that petition; the acts constituting coercion in the first degree were dismissed and the Court made an affirmative finding with respect to the acts of coercion in the second degree. Thereafter at a dispositional conference, Respondent was placed on probation on consent for a period of 24 months, from September 2, 2004. In addition to the usual conditions of probation supervision, special conditions consisted of the following: “no contact with the victim; no gang affiliations or associations, except for Respondent’s brother; and Respondent to continue in counseling as directed.”

Published on: July 13, 2015

Plaintiff Seeks Permanent Injunction

by Stephen Bilkis

For a number of years the defendant has operated a junk yard on property located on U.S. Route 20, Town of Nassau in Rensselaer County. Over the years there have been disagreements between the Town and the petitioner with regard to the petitioner’s operation of the junk yard and the Town’s efforts to regulate it. In August 2002 the Town commenced an action against the petitioner in an attempt to enforce Town of Nassau Local Law No. 1 [1989] with regard to the licensing and regulation of junk yards. That action was ultimately resolved when the parties entered into a stipulation which was so-ordered by the undersigned on September 9, 2002. In May 2003 the Town of Nassau commenced the instant action against the defendant.

The action was temporarily halted when the parties, on November 8, 2004. entered into a Stipulation of Settlement which was so-ordered by the Court. That agreement, arrived at after much litigation and negotiation, memorialized a number of commitments on defendant’s part regarding the manner in which he would operate and maintain the junk yard. By reason of defendant’s violations of the November 8, 2004 Stipulation of Settlement the plaintiff, in June 2006, commenced an enforcement proceeding seeking to permanently enjoin the operation of the junk yard and for liquidated damages. On June 8, 2007 the Court, after a hearing, issued a permanent injunction prohibiting the defendant from further operation of the junk yard and awarding plaintiff liquidated damages.