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Published on: August 10, 2016

Petitioner Seeks Assistance with Section 8 Subsidy

by Stephen Bilkis

In this Article 78 proceeding, it is undisputed that petitioner, who had received a Section 8 rent subsidy, did not submit her annual income certification documents, and that respondent New York City Housing Authority terminated petitioner’s Section 8 rent subsidy. Petitioner then wrote to the agency, asking it “to give her family a chance,” and to “Please inform me & my family what we can do to fix my situation.” Petitioner challenges the agency’s determination denying petitioner’s request.

Respondent Rhea and the New York City Housing Authority (collectively, NYCHA) cross-move to dismiss the Article 78 petition as time-barred. Petitioner opposes the motion. NYCHA argues that petitioner’s request was merely a request to restore her subsidy; petitioner argues that the request sought to reopen her default.

NYCHA must follow certain procedures to terminate Section 8 assistance, which were established in a First Partial Consent Judgment entered into on October 4, 1984 in Williams v. New York City Housing Authority.

Published on: August 9, 2016

Court Orders Plaintiff to Amend Complaint

by Stephen Bilkis

On October 28, 2001, plaintiff’s decedent, LM, fell in his apartment, which was located in the Narragansett Hotel, a residential hotel in New York City. A neighbor heard yelling coming from the apartment and called an ambulance. According to the Ambulance Call Report prepared by the EMS workers, he was found “lying in apt, full of feces.” The report indicated that he had fallen down in his apartment and was, inter alia, having difficulty breathing. It was also noted in the report that he had an elevated heart rate of 132 beats per minute, while in the care of the EMS workers. In addition to the information relating to his medical condition, the Ambulance Call Report contained LM’s address, date of birth and social security number. The Ambulance Call Report also listed JT, a close friend of LM, as his next of kin, and contained Ms. JT’s telephone number.

LM was taken by ambulance to the emergency room at Mount Sinai Hospital at approximately 1:55 p.m. The Ambulance Call Report, prepared by the EMS workers, was received by a staff member at Mount Sinai, who signed the report as the Hospital Receiving Agent. An Emergency Department, Patient Registration Form was prepared, at some point, after LM’s arrival at the hospital, and contained the same pedigree information as the Ambulance Call Report, i.e., address, date of birth and social security number. Mount Sinai’s Patient Registration Form also listed JT as LM’s next of kin, and contained her telephone number. A triage assessment was performed, and the records indicate that, at that time, LM was still experiencing shortness of breath and was noted to, among other things, have an elevated heart rate. The triage records state that LM was disheveled in appearance and full of feces. It appears that no treatment was administered in triage. Notwithstanding, he was given acute priority, and sent to an acute area of the emergency department. It is noted that the triage records also contain LM’s pedigree information.

LM was assessed by Dr. JJB, Jr., an attending physician, in the emergency room at Mount Sinai. He was found to be in respiratory distress, with edema, which is the swelling of the extremities. The emergency room records indicate that LM’s heart rate was a very high 160 beats per minute, at the time. Dr. JJB testified at his deposition that his preliminary diagnosis was congestive heart failure, as a result of, or a cause of, arterial fibrillation. Dr. JJB also entertained the possibility of pneumonia and heart ischemia. He considered LM to be a critically ill patient. Dr. JJB testified that he put a nonrebreather face mask on LM with the highest concentration of oxygen. The use of the nonrebreather face mask was documented in the emergency room records. According to Dr. JJB, he administered Diltiazem to reduce LM’s heart rate and “would typically” administer a dose of Lasix to get rid of extra body fluid. Dr. JJB further testified that he would have probably given LM an antibiotic in case there was pneumonia. Notwithstanding Dr. JJB testimony with respect to the administering of the aforementioned treatments, with the exception of the use of the nonrebreather mask, the emergency room records did not indicate that LM was provided with any of the other treatments discussed by Dr. JJB at his deposition. Additionally, Dr. JJB testified that nurses at Mount Sinai assisted in the emergency room treatment provided to LM, however, it does not appear that any nursing notes were generated in connection with such treatment.

Published on: August 8, 2016

Petitioner Seeks to Vacate Determination by Department of Consumer Affairs

by Stephen Bilkis

Legal counsel said that, the current motion by Petitioner is to vacate a determination of the Nassau County Department of Consumer Affairs (DCA) to the effect that Plaintiff Corporation was an unlicensed home improvement contractor in violation of the Nassau County Administrative Code. The Cross-motion, denominated a motion by the Respondent, is to confirm the determination of the DCA.

The related action is by plaintiff to recover $90,000 held in escrow after the transfer of title to a single family residence from North Sea to the respondent. The $90,000 included $65,000 which was due to plaintiff on receipt of a Certificate of Completion, and $25,000 for work to be completed after the transfer of title. This Court has previously awarded plaintiff a judgment in the amount of $65,000. The respondent filed a complaint with the DCA that plaintiff was not entitled to payment because they were operating as an unlicensed home improvement contractor in violation of Local Law 6-1970, § 21-11.2.1 The parties appeared for a hearing before Hearing Officer, on June 19, 20082, and a determination was rendered on June 22, 2008. It found Elm Sea in violation of the ordinance and fined them $500.3 A Nassau Order of Protection Lawyer said that, plaintiff appealed and a final determination was rendered on July 9, 2008.4 The Commissioner of the Office of Consumer Affairs rejected the arguments of plaintiff that the work performed on the residence after the closing was in accordance with a contract of sale in which plaintiff, as owner, agreed to perform work on the premises prior to closing. The Commissioner distinguished between the work done before the transfer of title, when plaintiff was arranging for work on its own home, and work done in accordance with a “punch list”. The Respondent concluded that the change order was a contract for home improvement for which a license was required.

The Court concludes that the determination by the Respondent that the “Punch List” constituted a separate and distinct home improvement contract requiring a license for performance is unreasonable. The determination is vacated and the fine in the amount of $500 is set aside. There is no controversy but that the work done by Elm Sea on the home to which it took title on September 1, 20066 did not require a home improvement license. The work was done in accordance with necessary permits and was approved by issuance of certificates of completion.

Published on: August 7, 2016

Respondent Asserts Plaintiff Failed to Exhaust Administrative Remedies

by Stephen Bilkis

The plaintiff and her two children are clients of the Nassau County Department of Social Services (Department). On or about May 29, 1971, she received a public assistance check from the Department. Several days later, while her possessions were being moved to a new place, she claims to have noticed that her handbag, containing the remaining proceeds of her grant, had disappeared.

Upon discovering her loss, plaintiff telephoned the local police to report the loss, notified the Department and requested that her grant be duplicated. The Department denied the request on the ground that duplicate grants are not issued by the Department in accordance with its applicable policy. Plaintiff thereupon instituted this Article 78 proceeding to direct the respondent Commissioner of the Department to issue a duplicate grant in replacement of the stolen amount. She asserts without contradiction that her destitute circumstances have compelled her to borrow funds from friends to supply her family with food, that she has been unable to pay rent in her new premises as a result, and that she and her family now face eviction.

Respondent asserts that plaintiff has failed to exhaust her administrative remedies, and that duplicate grants are not available in replacement of stolen funds. Respondent has called to the attention of the Court that substantial expenditures of County funds may be required to make the type of duplicate payments requested by petitioner, and that reimbursement for such expenditures has not been available from the State since July 1, 1969.

Published on: August 6, 2016

Interesting Case Decides Parenting Rights of Surrogate Mother

by Stephen Bilkis

This is a Family case wherein Plaintiffs appealed in an action for a judgment, inter alia, declaring the plaintiff D.Y.-V. to be the legal mother of a child born on May 1, 2009, to the plaintiff N.N. and declaring article 8 of the Domestic Relations Law and Family Court Act §§ 517 and 542 unconstitutional and void and, upon such declaration, directing the defendant to amend the child’s birth certificate, as limited by their brief, from so much of an order of the Supreme Court, entered January 21, 2010, in Nassau County, as granted that branch of the defendant’s motion which was to dismiss the amended complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

The underlying facts are not in dispute. In 1999, the plaintiff (hereinafter the Genetic Mother) underwent a hysterectomy after it was discovered that her uterus was surrounded by a malignant tumor which rendered her unable to conceive, carry, and give birth to a child. Her ovaries were left intact.

After her subsequent marriage to the plaintiff T.V., the Genetic Mother desired to have a biological child with the Genetic Father. In order to do so, the plaintiff Gestational Mother, a close friend of the Genetic Parents, offered to act as a gestational surrogate of the eggs of the Genetic Mother which had been fertilized with the sperm of the Genetic Father through in vitro fertilization. No fee was sought by or provided to the Gestational Mother as she undertook to carry the Genetic Parents’ child “out of friendship, compassion, and her desire to assist the [Genetic Parents] in becoming parents of their own biological child.”

Published on: August 5, 2016

Court Hears Motion to Disqualify Defendant Counsel

by Stephen Bilkis

The People’s motion for an order disqualifying Defendant’s counsel and precluding use at trial of statements of prosecution witnesses taken by defense counsel or his associates is denied. Defendant’s cross-motion for an order dismissing the accusatory instrument as facially defective, in the interests of justice, or on account of the People’s failure to be ready for trial within the prescribed time, and suppressing statements he made to law enforcement officials in violation of the procedures enunciated in a case, is denied as noted below.

A Nassau lawyer said that the People commenced this action in November 2005 by the filing of what is labeled an information that accuses Defendant of sexual abuse in the second degree. By the factual part (see CPL 100.15[3]), the complainant, a Detective attests that “on 11/19/2005 and about 11:00 a.m. while at a Freeport, the defendant did enter the bedroom of the mentally retarded 16 year old female and did expose his erect penis. Said defendant did take the victim’s hand in his own and put the victim’s hand on his erect penis and did masturbate himself to ejaculation with the victim’s hand.”

“The above is based on information and belief. The source of said information and the basis of the belief is the interview and statement of the victim and the interview and statement of admission of the defendant.”

Published on: August 4, 2016

Court Hears Condemnation Proceeding

by Stephen Bilkis

In this family case, a condemnation proceeding is the just compensation to be awarded to claimant, for the taking of several parcels of property located in Queens County. The condemnee, took title to the subject parcels on February 29, 1996, for the creation of a Park. The court viewed the property on April 27, 2006 and this non-jury trial took place on July 12, 14, 17 and 18, 2006.

In its Appraisal Report dated June 30, 2005, claimant values the property at $10,000,000. In so finding, it determines that the total lot area of the subject property is 877,304 square feet; the majority of it is underwater, with additional property located within paper streets, i.e., streets that are mapped but are not physically improved. Claimant describes the property as being relatively level and located in Malba, “a prime area” that is “an upscale community that includes several waterfront mansions,” consisting of predominantly residential uses, including one- and two-family homes and several complexes of attached row houses. Albert further notes that approximately 88% of the land in the area is improved with residential structures, of which 75% are one- and two-family homes, 8% are walk-up apartment buildings and 5% are condominiums and elevator buildings.

In reaching its valuation, the evaluator adopts the findings of the claimant’s zoning expert, who relies upon the opinion of a licensed architect, who concludes that the paper streets could be demapped.

Published on: August 3, 2016

Court Rules on Child Neglect Proceeding

by Stephen Bilkis

In a child neglect proceeding brought pursuant to Family Court Act article 10, the parties stipulated to have the Nassau County Department of Probation investigate the underlying circumstances relating to the alleged child neglect and to thereafter issue a report, including its recommendations. The parties further agreed to allow the court to use the Probation Department’s report “to aid it in rendering a decision” in the matter.

The Probation Department, which was not a party to the stipulation, produced a report which did not, however, contain any recommendations. By order dated April 30, 1984, then Family Court Judge PC, before whom the proceeding was pending, directed the Probation Department to make a definite recommendation. When the Probation Department informed Judge PC that it did not consider it appropriate for it to make recommendations prior to the court’s making of a finding of neglect, Judge PC reiterated her order. The Probation Department thereupon commenced the instant proceeding in the Supreme Court to annul Judge PC’ order, to prohibit its enforcement, and to obtain a declaration that Family Court Act §§ 1047 and 1048 preclude it from furnishing reports to the Family Court prior to completion of a fact-finding hearing. Judge PC cross-moved to dismiss the petition, inter alia, on the ground that a CPLR article 78 proceeding in the nature of prohibition is not available to obtain the relief sought.

Initially, appellant (Judge PC) raises the question as to whether a CPLR article 78 proceeding is the appropriate vehicle to challenge the Family Court’s direction since prohibition is an “extraordinary remedy” that is available against a court only when it acts without jurisdiction or exceeds its authorized powers. Purported errors of law, which are not properly reviewable by a CPLR article 78 proceeding in the nature of prohibition, are often incorrectly asserted to have been made in excess of jurisdiction

Published on: August 2, 2016

Respondent Claims Family Court Lacks Jurisdiction

by Stephen Bilkis

Mr. NK, respondent in a Family Court proceeding, petitions for a judgment under Article 78 of the CPLR prohibiting the Judges of the Family Court, of Nassau County, or any of them, from proceeding with a hearing on a complaint under Article 8 of the Family Court Act made by JK against the petitioner.

Petitioner states that JK, the complainant in the Family Court, and he were formerly husband and wife but that the marriage was dissolved by a divorce in favor of JK, that JK resides with their two children in the City of Long Beach, that JK instituted the proceeding in the Family Court, Nassau County, under Article 8 of the Family Court Act, and that the provision of the Act under which he proceeds reads in part as follows:

“A proceeding under this article is originated by the filing of a petition: ‘(a) alleging that the respondent assaulted his spouse, parent, child, or other member of the same family or household, or engaged in disorderly conduct toward any such person.”

Published on: August 1, 2016

Court Decides Neglect Case

by Stephen Bilkis

The Presentment Agency moves, pursuant to a motion for summary judgment, for an order adjudging an after-born child to be permanently neglected, upon the ground that the parents of the two older siblings of the after-born child have previously been adjudicated unable to provide proper and adequate care for them.

The facts of the case is as follows: On March 27, 1998, the two older children of the parties, SH and MH, ages four years and two years respectively, were removed by Nassau County DSS and an application for return pursuant to FCA §1028 was filed by the parents. The Court tried that matter from April 24, 1998 through May 8, 1998, resulting in a denial of the application to return.

Thereafter, the fact finding hearing concerning the two older children was commenced on August 31, 1998 and did not conclude until May 7, 2001. The reason for the lengthy hearing was that counsel for one of the parties had an extended illness, that the Mother had been committed to Pilgrim State Hospital for a long period of time and that the Father had been a voluntary resident at various times at the Northport VA Hospital, psychiatric unit.