Suffolk County

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.

Published on: March 22, 2014

Family Court Deals with Case Regarding ACS Case

by Stephen Bilkis

A New York Family Lawyer the petitioner Administration for Children’s Services (ACS) failed to establish by a preponderance of the evidence that the defendant mother knew, or should have known, that her child A was not being properly supervised when she took a nap. The Family Court then dismissed the branches of the neglect petitions alleging that the defendant mother neglected child A and derivatively neglected the other children in allowing child A to fall out of a window in her apartment.

A New York Child Custody Lawyer said the court finds that the Family Court erred in dismissing the branches of the neglect petitions alleging that the mother failed to protect the children from witnessing domestic violence. ACS established by a preponderance of the evidence that there was a 12-year history of domestic violence between the mother and the respondent father which was witnessed and often required the children to intervene. Moreover, there was sufficient evidence to establish that the children witnessed the incident when respondent father fought with the mother and struck her with a cooking pot. This evidence was sufficient to support a finding of neglect against the mother. Evidence of acts of severe violence between parents in the presence of their children is sufficient to show that the children’s physical, mental, or emotional conditions are in imminent danger of becoming impaired within the meaning of Family Court Act § 1012 (f) (i) (B).

Further, a Suffolk County Family Lawyer said the Family Court erroneously dismissed the branches of the neglect petitions alleging that the mother failed to protect the children from the excessive use of corporal punishment by respondent father. ACS established by a preponderance of the evidence that respondent father used excessive corporal punishment on the children. ACS also established by a preponderance of the evidence that the mother should have known about the use of excessive corporal punishment. This evidence was sufficient to support a finding of neglect against the mother for the failure to protect the children from excessive use of corporal punishment.

Published on: March 7, 2014

Court Discusses Rights of Minor’s Right to Due Process

by Stephen Bilkis

A New York Family Lawyer said the issue presented is whether the Family Court has jurisdiction to commit a juvenile to the Department of Mental Hygiene if it is alleged that the juvenile is a delinquent in a situation where, prior to being adjudicated pursuant to the Family Court Act, he is found to be incompetent to defend himself in such proceeding. It is hold that the Family Court has such jurisdiction, but that it must be exercised only in a manner consistent with the juvenile’s constitutional right to due process.

A New York Custody Lawyer said the appeals present a novel question concerning the rights of juveniles charged as delinquents. Each of the petitioner-appellants has been charged by a petition filed in the Family Court with committing acts which, had they been committed by an adult, would have constituted felonies.

Boy A was accused of several counts of robbery, assault and weapons possession arising out of the robbery of two elderly gentlemen. In the course of the robberies he used an ice pick and thereby inflicted minor wounds on his victims. Two days after the petitions were filed in the Family Court seeking to adjudicate him (he was then 14 years old) a juvenile delinquent he was remanded to Kings County Hospital to determine his fitness for trial. The examination was ordered at the request of the Law Guardian, and was conducted.

Published on: March 1, 2014

Defense Claims Plaintiff’s Case is Frivolous

by Stephen Bilkis

A New York Family Lawyer said that, plaintiff seeks an order 1) granting Plaintiff leave of Court to voluntarily discontinue the Instant Action without prejudice; or, alternatively, 2) consolidating this action with the Kings County Action; 3) determining the appropriate venue in which these two actions should be litigated; and 4) granting certain injunctive relief.

A New York Custody Lawyer said that, defendants oppose Plaintiff’s motion and cross move for an Order awarding sanctions against Plaintiff and his counsel for their allegedly frivolous conduct in filing this motion. The Amended Verified Complaint (“Complaint”) in this action, filed June 12, 2009, describes this case as an action arising as a result of Defendant breaches of his agreements with Plaintiff regarding the operation of a corporation. Plaintiff has sued 1) in his individual capacity to recover sums representing his capital contributions, plus interest, 2) for monetary damages arising from plaintiff’s allegedly fraudulent misrepresentations and breaches of his fiduciary duties as the corporation’s member-manager, 3) for declaratory relief recognizing that the corporation is the owner of the disputed property (“Property”) located at 500 4th Avenue, Brooklyn, New York, and 4) for the imposition of a constructive trust on the proceeds from sales of the Property or any part thereof. The Court has conducted numerous conferences in this matter.

A Suffolk County Family Lawyer said that, by Verified Complaint, Plaintiff, individually and as a member of the corporation, filed the Kings County Action. In the Kings County Complaint, he alleges, inter alia, that defendant fraudulently diverted funds related to the corporation and the Property and seeks injunctive relief. On August 6, 2010, counsel for the parties appeared before the Justice assigned to the Kings County Action in connection with an application for a temporary restraining order in the Kings County Action and Defendants’ counsel has provided a transcript of those proceedings. The Assigned Justice in the Kings County Action concluded that it was inappropriate for her to address the application before her in light of the pending action before this Court, stating that “the order to show cause is declined because another action is pending for the same relief in Nassau County”.

Published on: January 14, 2014

Petitioner Seeks to Modify Custody based on Allegations of Neglect

by Stephen Bilkis

A New York Family Lawyer said that it is not disputed that a boy was born to a woman. Four days later, the mother and Mr. B. signed an acknowledgment of paternity regarding the boy. The mother and Mr. B. were never married. On June 12, 2008, before the child was one year old, Mr. B. filed a custody petition, alleging that he is the father of the child, that the mother is unfit, mentally unstable, on and off anti-depressants, unstable, violent, neglectful of her other child, and even practices demonic witchcraft.

On September 24, 2008, the support litigation was started when the Department of Human Services — CSEU as assignee of the mother filed a petition for child support against the boy, alleging that Mr. B. was the father of the child based on the Acknowledgment of Paternity previously signed by both the mother and Mr. B. In the support paperwork, the mother indicated there were two possible fathers. This was apparently initially overlooked.

A New York Custody Lawyer said on October 30, 2008, and with both parties represented by counsel, the parties consented to an order of joint custody, primary residence of the child with the mother and periods of visitation with Mr. B.

Published on: November 3, 2013

Court Looks at Jurisdictional Issue in Child Custody Proceeding

by Stephen Bilkis

A husband initially commenced a divorce proceeding in his place but the court declined to hear it since his children are United States citizens. The husband thereafter initiated the action again and an extensive decision of the court was issued on child custody and visitation.

A New York Family Lawyer said the parties have five children and at present, the four youngest children reside with the mother at a shelter, while the eldest child resides with the father at their marital residence. The parties are each in good health. An interpreter was also provided for the wife throughout the proceeding since she does not speak English. Even if the husband testified in English during the custody and visitation trial, he requested the use of an interpreter for the financial proceeding. The husband’s former attorney was relieved as counsel shortly after the decision of the matter was rendered. The attorney was then substituted.

During the party’s marriage, the husband worked in a construction industry which enabled him to financially support his family. Subsequently, the parties and their children traveled back to their hometown. The husband returned to the United States after two weeks, however, the wife and children were left at the husband’s parent’s house. Later, the wife and the youngest child left the husband’s parents’ home and went to live with the wife’s family in a nearby village over the objections of the husband and his family. The four eldest children remained with the husband’s parents. Thereafter, the marriage fractured.

Published on: October 25, 2013

Respondent Objects to Child Support Order

by Stephen Bilkis

A New York Family Lawyer said that, objections filed by Respondent, the non-custodial parent, to an order of the Support Magistrate in favor of Petitioner modifying a child support order of $25 per week for birth expenses by an additional $62 per week for current child support of the parties’ one-year-old son. Specifically, respondent contends that the Support Magistrate’s findings are inaccurate and fail to reflect his current financial situation, including his other confinement and support obligations in Essex and Saratoga counties, respectively.

A New York Custody Lawyer said that, the Child Support Standards Act (CSSA) requires all child support determinations to be based upon the income of each parent less certain statutory deductions, the net amounts of which are then added together to arrive at the parties’ “combined parental income”. A party’s income generally consists of his/her gross income “as should have been or should be reported in the most recent federal tax return”, and may be calculated based upon the party’s most recent pay stubs. A court is not bound by the income reported in an individual’s income tax return, and has considerable discretion to use other resources available to a parent in determining a child support award including “money, goods or services provided by friends and relatives”. The CSSA requires downward adjustments of each party’s income for certain items of expense and income, such as FICA (medicare and social security), unreimbursed employee business expenses, alimony and maintenance actually paid, income from public assistance and supplemental social security, and child support actually paid pursuant to a court order on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action”.

A Suffolk County Family Lawyer said that, following these adjustments, the parties’ respective incomes are added together to arrive at the “combined parental income” upon which is calculated the “basic child support obligation”, consisting not only of child support but also child care expenses incurred by the custodial parent, apportionment of “future reasonable health care expenses of the child not covered by insurance”, and under appropriate circumstances educational expenses “in the best interests of the child as justice requires”. The amount of child support is determined by multiplying the combined parental income (up to $80,000) by the CSSA child support percentage applicable for the number of children of the parties, the result of which is then “prorated in the same proportion as each parent’s income is to the combined parental income” to arrive at the non-custodial parent’s child support obligation. Each parent’s pro rata share of the combined parental income is also used to apportion “each parent’s share of future reasonable health care expenses of the children not covered by insurance”, as well as child care expenses. “Where the custodial parent is working, or receiving elementary or secondary education, or higher education or vocational training which the court determines will lead to employment”, each parent’s pro rata share of those expenses must be “separately stated and added to the” child support amount. If the custodial parent “is seeking work and incurs child care expenses as a result thereof”, “the non-custodial parent’s share shall be separately stated and paid in a manner determined by the court”.

Published on: October 22, 2013

Court Discusses Plaintiff’s Rights to Discovery

by Stephen Bilkis

Bligen v Markland Estates, Inc

Court Discusses Plaintiff’s Rights to Discovery

The plaintiff is the mother of an infant child who allegedly suffered from lead poison during the period that they lived at a premises located in Jamaica, Queens. The defendants were the owner and managers of the property. After the accident, the Department of Health issued a violation to the defendants as a result of the lead poisoning suffered by the child. The defendants then conducted its own testing for lead which indicated that all areas where below the relevant threshold for lead poisoning. A New York Family Lawyer said the mother of the child thereafter initiated a claim against the defendants for the injuries her child sustained. The defendants submitted all the documents regarding the test results to the plaintiff during the course of discovery.

Published on: October 18, 2013

Father Moves for Sole Custody

by Stephen Bilkis

A mother filed a motion to modify their divorce decree by deleting the requirement that she must reside with her three children within a radius of fifty miles of New York City. A New York Family Lawyer said the purpose of her application was to relocate the children with her. The father however cross-moved for sole custody of the children or, in the alternative, for an order conditioning the mother’s right to custody on her continued residency with the children within the aforementioned fifty miles radius.

Pursuant to the agreement, the father had the right to visit the children at any time on reasonable notice to the mother, and to have the children spend with him alternate weekends from Friday evening to Sunday evening. A New York Custody Lawyer said if the children went to summer camp, the father had the right to have any or all of them spend one-half of the remaining summer vacation time with him.

The mother stated that she wanted to relocate because she would be able to secure for them, similar if not, superior educational advantages without costs as well as outstanding recreational and summer activities at minimal costs. As for herself, she would be able to pursue her career in advertising and sales promotion which she could no longer do in New York City and at the same time spend more time with her children.

Published on: October 17, 2013

Court Discusses Complicated Case Involving a TRO

by Stephen Bilkis

Plaintiff A is the court appointed article 81 financial guardian for B. He is also the co-trustee of the B Family Trust. A New York Family Lawyer said these appointments were made only after the original action was brought. A has now interposed a third amended complaint on behalf of his ward. Defendant C as trustee and certain business defendants have brought a pre-answer motion to dismiss the fifth through fourteenth causes of action asserted in the third amended complaint. C has now joined in that motion in her individual capacity. Defendant D has separately moved to dismiss the causes of action asserted as to her. Defendant E separately moved to dismiss the causes of action asserted as to him.

F law firm separately moved to be relieved as counsel of record for certain defendants. This motion has already been denied by the court. A cross moved to: disqualify the F law firm; appoint a receiver; appoint a successor trustee in place of C of the B Family Trust; hold a hearing on whether a guardian ad litem should be appointed for G; strike D’s reply in support of her motion to dismiss and strike C’s reply in support of her motion to dismiss. A subsequently withdrew his application to have a receiver appointed. A New York Custody Lawyer said that although the parties represented to the court that the only relief left in the cross-motion pertained to disqualification of the F law firm, other requested relief has not been formally withdrawn. Thus, still outstanding is A’s request for the appointment of a successor trustee, a guardian ad litem hearing and to strike reply papers on the motions to dismiss.

Because all of the motions and cross-motion are substantially interrelated and rely on similar facts and arguments made sometimes in overlapping papers, they are consolidated for consideration and determination in this single decision. At the outset the court rejects arguments that the court should refuse to consider any of the relief requested in A’s cross-motion because it was made at a time when a stay of the proceedings was in effect. Regardless of whether the temporary restraining order contained in the August 27, 2007 Order to Show Cause precluded the cross-motion at the time it was originally interposed, that TRO had long expired by the time the cross-motion was actually submitted to the court. In the interim, and certainly by the time of submission, all parties had been given an opportunity to oppose the relief requested in the cross-motion on the merits. Thus the relief requested by A will be considered on the merits.