Suffolk County

Published on: September 16, 2014

Court Examines Jurisdiction Issue in Custody Proceeding

by Stephen Bilkis

A New York Family Lawyer said this is a related child custody and visitation proceedings pursuant to Family Court Act article 6 wherein the mother, A, appeals, as limited by her brief, from an order of the Family Court Nassau County dated 10 March 2010, declining jurisdiction over the matter pursuant to Domestic Relations Law § 76-g, dismissing the petitions, and directing the parties to file any further requests for relief in the State of Florida.

The court reverses the judgment insofar as appealed from, on the law, with costs. The court reinstates the petitions pertaining to the subject child and the remits the matter to the Family Court, Nassau County for further proceedings.

A and B were never married but had a child together born in New York on 16 August 2004. Two months after the child’s birth, A and the child resided in New York and B resided in Florida. A filed petitions in New York seeking an order of filiation and an order of support, which relief was granted.

Published on: September 14, 2014

Plaintiff files for Order Directing Defendant to Leave Marital Home

by Stephen Bilkis

A New York Family Lawyer said that, in an action for divorce plaintiff wife has made two applications for orders directing defendant to vacate the marital home; to provide child support and maintenance for her and the issue of the marriage; and to restrain him from removing furnishings, furniture and personal property from the residence.

A Nassau Order of Protection Lawyer said that, when the motions were originally submitted on April 30 last, we discovered that an application which had been made to the Family Court, Suffolk County, for an order of protection was being sent to the Court in Nassau County for determination. An inquiry to the Nassau County Family Court confirmed that information. Since the motions concerned ‘relief associated with the Family Court proceeding’, we referred them to that Court for hearing and determination. Then the applications were referred back to the Family Court in Suffolk County. On June 9, 1971, a Judge of that Court, after a discussion with counsel, returned the matters to us for determination. We have received and carefully reviewed the transcript of the remarks made on that occasion. The Judge said that what the Justice wants this Court to do is to determine everything but the fact that the divorce is granted.’ Surely, if the Family Court granted an order of protection it would render moot the request for exclusive occupancy and that determination would in turn affect the allowance for support.

The issue in this case is whether the action for divorce plaintiff’s motion to give her exclusive possession of the marital home and restraining the defendant from removing property therefrom should be granted.

Published on: September 2, 2014

Court Decides if Spousal Support and Alimony Should be Suspended Based on Denial of Visitation

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the plaintiff wife had previously been granted a divorce, the defendant husband appeals (1) from an order of the Supreme Court, Suffolk County, dated August 25, 1981, which granted plaintiff’s motion for the appointment of a receiver of all defendant’s property in the State of New York, “particularly all of his right, title and interest in and to the former marital residence”, named plaintiff as the receiver, awarded plaintiff a counsel fee of $750, and denied defendant’s cross motion to, inter alia, suspend prospective payments of alimony and child support, on the ground that plaintiff unreasonably withheld visitation, and (2) from a further order of the same court, dated October 22, 1981, which denied his motion to renew.

In a stipulation settling their differences, which was incorporated but not merged in the judgment of divorce, the parties agreed, inter alia, that plaintiff would have exclusive possession of the marital residence, owned by them as tenants by the entirety. However, plaintiff was given the right to elect to sell the marital residence. The defendant further agreed to pay plaintiff $50 per week alimony and a total of $100 per week child support. The stipulation also provided: “Each party shall own free of any claim or right of the other all of the items of property, real, personal and mixed, of any kind, nature or description, and wheresoever’s situated, which are now owned by him or her”.

A New York Divorce Lawyer said that, in January, 1981, defendant petitioned the Family Court, Nassau County, for an order suspending his child support obligations on the ground that plaintiff had unreasonably denied him visitation with the children. By order dated January 28, 1981, his application was denied. A Nassau Visitation Lawyer said that, in June, 1981, defendant made a second application in the Family Court, Nassau County, for suspension of alimony and/or maintenance, on the ground, inter alia, that he was unreasonably denied visitation. By order dated July 17, 1981, his application was, again, denied and a judgment for arrears was entered against him.

Published on: August 28, 2014

Court Decides if Petitioner and Respondent May be Subject to a Licensee Proceeding

by Stephen Bilkis

A New York Family Lawyer said that, in January of 1989, the petitioner purchased a premises known as Pine brook Avenue, New York. A certified copy of the deed to the premises was offered into evidence, although the respondent concedes that her name does not appear on the deed or mortgage. The monthly mortgage payment for the premises at issue is $1,350 per month. In April of 1994, the parties had a child out of wedlock. In December of 1997, the respondent and the parties’ minor child moved into the subject premises with the petitioner. At the time that the respondent moved into the premises in question, there was no written agreement between the parties with regard to the subject premises and the respondent was not married to the petitioner. However, the parties were involved in a relationship, as boyfriend and girlfriend, and had been involved for some time. In July of 1999, the parties’ second child was born out of wedlock. Sometime after the birth of the parties’ second child, in early 2000, the relationship between the parties failed.

A New York Divorce Lawyer said that, soon thereafter, the respondent brought a Family Court proceeding for child support of the parties’ two minor children. As a result of this proceeding, a Family Court order of support was issued. In May of 2000, the respondent commenced another Family Court proceeding. This proceeding was to obtain a protective order. On December 1, 2000, an order of protection was ordered by the Nassau County Family Court, in favor of the respondent and against the petitioner, upon default of the petitioner. Shortly after the order of protection was issued, the petitioner demanded that the respondent leave the premises.

A Westchester County Family Lawyer said that, in December of 2000, the petitioner served the respondent a 10-day notice to vacate the premises. In January of 2001, the petitioner commenced a holdover proceeding to obtain exclusive possession of the premises in question, on the ground that the respondent is a “licensee” whose license has been terminated by the proper notice and service under RPAPL 713 (7). The respondent waived any defects in the 10-day notice, the petition and any jurisdictional defects. At the commencement of this proceeding there was no child support or custody order in effect. The order of protection, however, was in effect.

Published on: July 31, 2014

Public Assistance Denied to Pregnant Minor

by Stephen Bilkis

A New York Family Lawyer said that the mother applied for public assistance and medical aid from the County Department of Social Services for herself and her unborn child. At the time of the application, she was 20 years old and living separate and apart from her husband and residing in the home of her parents in Bethpage. Without any factual determination concerning the amount of child support actually furnished by her parents, the County Department of Social Services notified her that her application for eligibility for public assistance was being denied. The agency’s position was that she is under twenty-one, her parents are responsible for her, she is residing with her own parents, and they are of sufficient ability to support her. As far as the unborn child, there are no needs to be met for the unborn child.

Following a fair hearing proceeding, the hearing officer rendered a decision affirming the denial of assistance by the County Department of Social Services on the grounds that when a pregnant woman applies for public assistance for her unborn child and her needs are being met, the unborn child has no unmet needs.

Thereafter,a New York Divorce Lawyer said the mother commenced the Article 78 proceeding wherein she seeks to annul the determination after the fair hearing challenging the alleged practice and policy of the respondents of denying public assistance to married minors on the grounds that they are the legal responsibility of their parents; denying eligibility of married minors for public assistance by assuming resources of legally non-responsible relatives is available for their support without a finding that such resources are in fact being expended for the minor’s support; and denying eligibility of the unborn child for public assistance on the grounds that the pregnant mother’s needs are being met and the unborn child is precluded from establishing independent needs.

Published on: July 30, 2014

Court Discusses Right to Counsel in Civil Proceeding

by Stephen Bilkis

A New York Family Lawyer said this is a proceeding brought by the mother of two out-of-wedlock children, all residing in Florida, for their support by their New York putative father. The issue is whether an adjudication of the father’s paternity in a prior proceeding between these parties, and his acknowledgment therein of paternity, are binding and sufficient basis for an order of support, in the face of his contentions that he was then unrepresented by counsel and that the adjudicating court lacked jurisdiction.

A New York Divorce Lawyer said that the Uniform Support of Dependents Law (USDL) provides for a dependent in one state to their petition that a reciprocating state enforce a duty of support against a respondent domiciled, residing, or found in the latter, testimony being taken from each party ex parte in the respective states. Besides support for spouses and legitimate children, the USDL provides that the natural parents of a child born out of wedlock shall be severally liable for the support of such child, but the liability of the natural father shall not be enforceable unless he has been adjudicated to be the child’s father by a court of competent jurisdiction, or he has acknowledged or shall acknowledge paternity of the child in open court or by a verified written statement.

A Suffolk County Family Lawyer said that the respondent father denies the mother’s claim, in her present petition filed in Florida, that he is the father of her children. However, in a USDL proceeding between these parties in 1962, when the petitioner mother resided and filed a petition in Arizona, the Children’s Court of Nassau County held the father liable for the support of the children, on the basis of his oral acknowledgment of paternity in that Court.

Published on: July 24, 2014

Father Seeks a Downward Modification in Child Support

by Stephen Bilkis

A New York Family Lawyer said in accordance with a separation agreement, the husband was obligated to pay $750 per month to the wife as child support for the two infant of their marriage. The couple was granted a conversion divorce and the separation agreement was incorporated but not merged into the judgment.

In February 1985 the husband moved in Nassau County Supreme Court for a downward modification of child support and the wife moved in the same court for enforcement of the judgment and arrears. In settlement of both motions, a so ordered stipulation was entered in Nassau County Supreme Court which determined an allocation of the proceeds upon the sale of the marital premises. The stipulation was read into the record and commenced that both of the proceedings presently before the Court based upon the wife’s application seeking various forms of enforcement relief against the husband, and husband’s application for a downward modification of child support obligation are hereby settled on terms and conditions. It is noted that, pursuant to the terms of the stipulation and settlement, the former marital residence was sold and the husband received the sum of approximately $50,000 from the proceeds, the wife received in excess of $100,000 and the sum of $38,000 was placed in an escrow account to secure the future payment of child support.

A New York Divorce Lawyer said that on August 28, 1985, the husband again sought to reduce his child support payments, this time in the Family Court of Nassau County, and the matter was referred to a Hearing Examiner.

Published on: May 18, 2014

Child Guardian Files for Compulsory Accounting

by Stephen Bilkis

A New York Family Lawyer said this is a proceeding wherein A and B, as parent and legal guardian of C, filed a petition for a compulsory accounting and related relief pursuant to Surrogate Court Procedure Act §2205 on 9 July 2012, against E, co-executor and co-trustee, of the estate of F. E filed a response to petition for compulsory accounting seeking dismissal of the petition to compel an accounting for lack of standing of petitioners.

A New York Child Custody Lawyer said in rendering this decision the court has considered the petition to compel an accounting filed on 9 July 2012, the response to petition for compulsory accounting by E acknowledged on 6 August 2012, Petitioner’s Memorandum of Law dated 10 September 2012, Memorandum by G, Esq. on behalf of E, dated 13 September 2012, petitioners’ responding memorandum dated 1 October 2012 and the accounting proceeding responding memorandum by G filed 1 October 2012.

A Suffolk County Family Lawyer said that F, the testator, died on 2 March 2000. He was survived by his wife, H; the respondent herein, E; and two sons, I and J. At the time of the death of F, K had two infant children and L had four infant children. Two of the then minor children of J, A and C, are petitioners herein. A is no longer a minor.

Published on: April 6, 2014

Issue in this Case Deals with whether Petitioner is Entitled to Status of Permanent Family Member

by Stephen Bilkis

A New York Family Lawyer said that, petitioner brings this Article 78 proceeding against respondents in his capacity as Commissioner of the New York City Housing Authority, and the New York City Housing Authority (“NYCHA”), seeking a court order reversing and annulling NYCHA’s termination of her mother’s Section 8 voucher and NYCHA’s denial of petitioner’s application for succession rights to her mother’s Section 8 voucher. Petitioner was born in 1960 and is 49 years old. Petitioner has been diagnosed with and treated for schizophrenia paranoia. In 1983, petitioner received disability benefits from the Department of Health and Human Services for this disability. In 1986, when petitioner was about 26 years old, she and her mother, who is moved into Apartment 2B at 99-25 42nd Avenue in Corona, New York. Petitioner has had some periods of employment, most recently as a clerk in accounts receivable at Saint Vincent’s Catholic Medical Center home care facility in Rego Park, New York, although it is unknown whether she is presently employed in this capacity.

A New York Custody Lawyer said that, in 2002, petitioner applied for and was granted a Section 8 voucher. According to the copies of the Housing Assistance Payment Contracts between NYCHA and the owner of the Apartment from 2002 and 2003, both petitioner and her mother were listed as tenants and authorized residents of the Apartment. Petitioner was also listed on the Section 8 affidavits of income for recertification purposes. In an effort at independence, petitioner left the Apartment in November 2004 and established a separate residence with her godmother. NYCHA was duly notified. Petitioner maintained a close relationship with her mother while she was out of the Apartment Both petitioner and her mother experienced problems with their health over this period of time. In 2008, petitioner and her mother decided that it would be easier for them to take care of each other and their various health conditions and disabilities if they were living together again. They also mutually desired to reduce their individual expenses by living together. In advance of petitioner moving back in, in June 2008, petitioner and her mother formally requested permission for petitioner to move back into the Apartment NYCHA provided petitioner’s mother with a number of documents to complete and return to NYCHA. After returning the paperwork to NYCHA’s offices, petitioner and her mother were told that petitioner could not move back into the Apartment without written confirmation from NYCHA. They never received any such written confirmation. However, in October 2008, petitioner’s mother received a letter from NYCHA indicating that her share of the rent would increase as of November 1, 2008, presumably because petitioner’s income was now being calculated into the tenant’s share of rent Petitioner contacted NYCHA over the telephone and asked whether a decision had been made about permission for her to move into the Apartment. Petitioner sets forth that the NYCHA representative that she spoke to told her that she had been granted permission to move back in. Petitioner moved back to the Apartment on November 4, 2008.

A Suffolk County Family Lawyer said on October 22, 2009, petitioner’s mother was struck by a vehicle and died shortly thereafter from the injuries. One week later, NYCHA cancelled the Section 8 voucher. On or about December 23, 2009, after an inquiry by petitioner’s attorney about her rights to succeed to the Section 8 voucher, NYCHA sent the attorney a letter asserting that the voucher terminated with the death of petitioner’s mother. Petitioner was denied succession rights because she had only been “conditionally” re-added as a resident family member of the Apartment in 2008.

Published on: April 3, 2014

Court Decides Case Involving Jurisdiction Issue

by Stephen Bilkis

A New York Family Lawyer said that, defendant, a fugitive for nearly twenty years after pleading guilty to attempted criminal sale of a controlled substance in the third degree in 1991, and moves to either vacate that plea, or have the Court dismiss the case outright. Defendant is not a United States citizen, and claims to have been granted lawful permanent resident status in 1994. Federal authorities in Miami discovered the 1991 warrant issued for defendant’s arrest after he failed to appear for sentencing when defendant attempted to reenter the United States in November 2010 using a passport issued by the Dominican Republic. He was returned to New York to face his long-avoided sentence. He also faces removal from the United States.

A Bronx Visitation Lawyer said that, defendant makes legal challenges to the sufficiency of the plea allocution itself, as well as arguing that his legal representation in 1991 was insufficient under the Supreme Court’s 2010 decision. Defendant also challenges the Court’s jurisdiction to pronounce sentence twenty years after he pled guilty. Finally, defendant makes a post-plea application to have the case dismissed in the interest of justice, ostensibly because he faces mandatory removal by the Department of Immigration and Customs Enforcement as a result of the plea, and will be separated from his three children, who were born in the United States between 1994 and 2001. After filing an affirmation in opposition to all parts of the defense motion, the People entered into new plea discussions and offered defendant an opportunity to substitute a plea to a misdemeanor for the felony plea, with the stated purpose of aiding defendant in the removal proceeding. Upon review of the court file, reports prepared by the Department of Probation in 1991 and in 2010, as well as both parties’ written submissions, and after considering the subsequent oral application to replace the felony conviction, the Court denies the motion.

Defendant was arrested on November 20, 1990, inside 1085 Nelson Avenue in Bronx County. According to the felony complaint, an undercover police officer approached an unnamed, apprehended juvenile at that location, and indicated he wished to buy “perico,” a Spanish word commonly used in narcotics transactions to refer to cocaine. The juvenile directed him to defendant. The officer handed defendant prerecorded buy money, and defendant handed the officer cocaine wrapped in tinfoil. According to an affirmation submitted by ADA in response to an omnibus motion, defendant was arrested within moments of the sale at the same location, and was found in possession of the buy money and fourteen additional tinfoil-wrapped cocaine packages. He was immediately identified by the undercover police officer as the person who sold him cocaine.