Westchester County

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 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 1, 2014

Court Decides on on New Job for Family Court Hearing

by Stephen Bilkis

A New York Family Lawyer said that, in a custody proceeding pursuant to Family Court Act article 6, and a related habeas corpus proceeding, the attorney for the children appeals (1), by permission, from an order of the Family Court, Kings County, dated May 3, 2010, which, without a hearing, awarded temporary child custody of the children to the father until March 14, 2011, and (2) from an order of the same court dated May 21, 2010, which sustained the father’s petition for a writ of habeas corpus and directed the mother to return the children to the father. By decision and order on motion of this Court dated July 12, 2010, enforcement of the orders was stayed pending the hearing and determination of the appeals.

A New York Child Custody Lawyer said that, this case involves a custody dispute between the father of the subject children, who are teenagers, and their adult sister, who had custody of the subject children, based upon an agreement with the mother, which was later revoked.

The issue in this case is whether the court erred in granting custody to the father.

Published on: April 5, 2014

Petitioner Deals With Homelessness of Her and Two Granddaughters

by Stephen Bilkis

A New York Family Lawyer sais this case reveals the troubling state of public housing policy in the City of New York and the lack of available counsel for low-income tenants seeking to avoid homelessness. A Bronx Family Lawyer said that, petitioner commenced this Article 78 proceeding challenging the denial of her application for a lease in her own name as the “remaining family member” of the deceased tenant of record, her husband. Respondent New York City Housing Authority (NYCHA) cross-moved to dismiss the proceeding as barred by the statute of limitations. Following the initial conference with the Court, NYCHA also filed a Verified Answer addressing the merits of the petition. Thereafter, the Court held repeated conferences in an effort to resolve the matter so that petitioner could continue to reside in the apartment, along with her adult daughter who is deaf and disabled in other respects, and her two teenage granddaughters, who are the daughters of the former. No resolution having been reached, this Court is proceeding to determine the narrow issue presented; that is, whether the decision by the Hearing Officer upholding NYCHA’s denial of petitioner’s request for a lease was arbitrary and capricious. However, this decision is not intended to in any way tie the hands of Judge who is being presented with far broader issues in the related holdover proceeding pending before him in the Bronx Housing Court.

A New York Custody Lawyer said that, in or about the year 2000, petitioner’s husband became the tenant of record in apartment 11G, a four-room apartment in Sedgwick Houses located at 156 West 174th Street in the Bronx. The records confirm that an adult daughter of petitioner’s husband also resided in the apartment until she moved out some time in 2005. Whereas the husband had listed the adult daughter’s income on his annual income affidavit filed every spring in the early years of his tenancy, he did not list her in 2006 or 2007. On his April 5, 2007 income affidavit, the father listed his name and the name of his wife. For some reason, the surname was crossed off the section of the affidavit entitled “Persons Living in Apartment.” However, petitioner signed the form as “co-lessee” and included her annual income of $32,000 for work as a home attendant. Neither of those entries was crossed out. The NYCHA Interview Records contain no entries confirming when petitioner moved into the apartment and what communications NYCHA had with the tenant upon receipt of the income affidavit. Indeed, the file contains no entries whatsoever written by a Housing Assistant during the critical three-year period from February 17, 2004 through May 4, 2007, after which the tenant passed away.

A Westchester County Family Lawyer said that, according to NYCHA records, the husband submitted a formal written request to NYCHA on or about May 4, 2007, for his wife to permanently join the household. The husband explained that he was ill and wanted his wife to live in the apartment and care for him. On May 9, 2007, NYCHA approved the request. On May 11, 2007, the husband passed away. Petitioner then asked NYCHA for permission to stay in the apartment and obtain a lease in her own name, and she followed all the required procedures to pursue that request. The Housing Manager denied the request, and the Borough Manager agreed, finding that she was not eligible for a lease in her own name because she had not been living in the apartment with the husband with NYCHA’s permission for the requisite one-year period before the tenant of record died.

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 15, 2014

Family Court Hears Case Regarding Juvenile Respondents

by Stephen Bilkis

This decision follows the release of the two juvenile respondents from custody, despite a motion for their continued detention pursuant to Family Court Act § 307.4(4)(c), after the court held a pre-petition hearing and determined that the court had jurisdiction to detain the respondents pending a petition being filed.

A New York Family Lawyer said that, on Sunday, August 7, 2011 at about 7 p.m. uniformed police officers took both thirteen-year-old respondents into custody in connection with an alleged robbery occurring on the same date. Apparently, respondent D was identified in a show-up and arrested by the uniformed officers before being transported to the 94th Precinct. The basis for the detention of respondent is less clear, although he also may have been under arrest. Both respondents were detained at the 94th Precinct for over twenty-four hours until the evening of August 8, when they were taken to the Horizons detention center, from which the respondents were brought to the Kings County Family Court on the morning of Tuesday, August 9, 2011. Altogether the respondents were in custody for about thirty-eight hours before being produced in court. These facts came to light in a pre-petition hearing held under Family Court Act § 307.4 on the morning of August 9.

A New York Custody Lawyer said that, while in detention at the 94th Precinct on Sunday night, the respondents were placed in lineups arranged by detectives in connection with an investigation into events occurring on Saturday August 6, unrelated to the event that lead to their detention by the uniformed officers on August 7. Specifically, the detective testified that the respondents were detained at about 7 p.m. on August 7 by the uniformed police officers in regard to an alleged robbery. The uniformed officers brought the respondents to the 94th Precinct. The detective understood that defendant was under arrest, although he was not certain about the other defendant. The uniformed officers notified the respondents’ parents, who appeared at the precinct sometime around 8 p.m. on August 7. The detective suspected that the respondents may have been involved in two additional crimes on August 6. Apparently the detective questioned both respondents in the presence of their parent in relation to the August 6 crimes, and defendant made a statement at about 8:35 p.m. on August 7. The detective arranged for both respondents to be placed in line-ups at about 12:45 a.m. on August 8 with regard to one of the August 6 crimes. The result of those line-ups is unclear. The detective decided to conduct a second line-up with regard to the second August 6 crime, later in the day on August 8.

Published on: March 7, 2014

Court Rules on Petition to Modify Child Support

by Stephen Bilkis

A New York Family Lawyer said the complainant woman alleges in a claim filed on March 2, 2012, that on December 6, 2011 the Kings County Family Court granted her petition for modification of an Order of Support by Default. The court’s order, however, was erroneously associated with an old child support account number, since a clerk of that court refused to enter an updated number. The clerk’s action resulted in the complainant’s woman not receiving monthly child support payments of $714.00. In regard to damages, the complainant woman states that she is not getting her my son’s child support payments from the support collection unit.

A New York Custody Lawyer a pre-answer motion, the defendant moves to dismiss the claim on the ground that the Family Court lacks jurisdiction over it. Specifically, the defendant contends that the County Family Court does not have the authority to review a Family Court order, and does not have the jurisdiction to award equitable relief.

A Westchester County Family Lawyer said the Court of Claims has jurisdiction only over claims for money damages against the State of New York and a limited number of other entities specifically enumerated by statute. It has jurisdiction to hear and determine a claim of any person, corporation or municipality against the state for the appropriation of any real or personal property or any interest therein, for the breach of contract, express or implied, or for the torts of its officers or employees while acting as such officers or employees, providing the claimant complies with the limitations of this article. The statute further states that the Court of Claims has jurisdiction to render judgment in favor of the claimant or the state for such sum as should be paid by or to the state. Though not entirely clear from the contents of the claim, to the extent that the complainant seek a review of another Court’s rulings, the Court of Claims does not sit in review of Family Court determinations or correct errors made in its proceedings. To the extent that claimant requests that the Family Court direct that a clerical error be corrected so that she may receive support payments in the future, and remove an employee from the Family Court, such relief is essentially equitable in nature, which the County Family Court has no jurisdiction to grant.

Published on: February 10, 2014

Court Rules in Custody Battle

by Stephen Bilkis

A New York Family Lawyer related child custody and visitation proceedings pursuant to Family Court Act article 6, and related family offense proceedings pursuant to Family Court Act article 8, a Kings County Family attorney said that the father appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County, as, after a hearing, denied his petition to modify a prior custody order of the Family Court, Kings County, awarding the parties joint legal custody of their child with physical custody to the mother and liberal visitation to the father, so as to award him sole custody of the child, granted the mother’s petition to modify the prior custody order so as to award her sole custody of the child and to establish a visitation schedule for the father, and dismissed his two family offense petitions.

In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child, which requires evaluation of the “totality of the circumstances”. Here, the attorney for the child has advised this court of significant new developments which have occurred since the issuance of the order appealed from, including the commencement of a Family Court article 10 child protective proceeding against the mother, the filing of multiple domestic incident reports by both parents, and the lodging of complaints against both parents with the New York State Central Register of Child Abuse and Maltreatment.

A New York Custody Lawyer said that in light of these new factual circumstances, which this Court may properly consider, the record before us is no longer sufficient to determine which custodial arrangement is in the child’s best interests. Accordingly, the matter must be remitted to the Supreme Court, Kings County, to be consolidated with the related petitions pending in the Family Court, Kings County, and for a new hearing and a new custody determination thereafter by the Family Court, Kings County. The Court expressed no opinion as to the appropriate custody determination.