New York Family Law Blog

Published on: January 20, 2016

Court Decides if Case Against Social Services can be a Class Action

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: January 18, 2016

Respondent’s Placement Lapses at New York State Division of Youth During Proceedings

by Stephen Bilkis

In this proceeding under Family Court Act article 10, the New York City Corporation Counsel, on behalf of the Administration for Children’s Services, seeks leave of the court to allow the respondent’s placement with the Commissioner of Social Services [CSS] to lapse, in light of the respondent’s placement with the New York State Division for Youth [DFY].

This court placed the respondent, now fourteen years old, with CSS on October 22, 1991. The Commissioner of Social Services brought a neglect proceeding against the respondent’s father, after the father left respondent in the care of a girlfriend without making any provision for the child’s care. Respondent’s mother died in 1987. CSS worked with the father for the respondent’s return to his care for four years, during which time the father intermittently was incarcerated. In the summer of 1995, the 13 year old respondent ran away from foster care and took up residence with his father.

Published on: January 17, 2016

Court Rules on Issue Related to Private Placement Adoption

by Stephen Bilkis

This private placement adoption action presents a number of intertwined legal issues that highlight the shortcomings of the private placement adoption statutes in New York State. The infant who is the subject of the case has now been in the home of the petitioners since February 21, 1998 without the benefit of a valid adoption consent from the parents or a currently valid pre-adoption certification order. The adoption agency that originally accepted custody of the child is no longer supervising this placement because it was not licensed in the state where the child was born. Additionally, the fees charges by the principals involved may not be entirely allowable under New York State law.

There is little statutory or caselaw guidance available to assist the court in unraveling these dilemmas, and few satisfactory remedies available for the obvious failures of those charged with caring for this child to follow the statutory requirements contained in the Domestic Relations Law. What seems apparent, however, is that along the way many purportedly well-intended people ignored the law, creating a situation that puts this adoption in jeopardy.

Published on: January 16, 2016

Child Services Alleges Abuse of Child by Mother

by Stephen Bilkis

On June 20, 2011, the Administration for Children’s Services (ACS) filed a petition against respondent mother alleging that she derivatively severely abused the subject child by committing reckless or intentional acts that evinced a depraved indifference to human life and caused serious physical injury to the subject child’s five-year-old sibling Jamar resulting in his death.

The subject child under the age of eighteen whose parent subjected the child to reckless or intentional acts committed under circumstances evincing a depraved indifference to human life, which resulted in serious physical injury to the child as defined in subdivision ten of section 10.00 of the penal law:

Published on: January 15, 2016

Court Decides Whether an Assault Charge is Considered a Family Offense

by Stephen Bilkis

This misdemeanor information alleging the perpetration of an assault third by one Susan O’Toole and another upon the person of one Cathy O’Toole was transferred to the Family Court by the District Court, the County of Suffolk: First District.

Briefly stated, the facts are as follows: Cathy O’Toole went to a bar with her parents and brother where she saw respondent, Susan O’Toole, her brother’s wife. Susan and Cathy’s brother had been separated for some time. It is alleged by Cathy that she was assaulted by Susan and another in a parking lot outside the bar. Susan and Cathy do not reside in the same house.

Published on: January 14, 2016

Plaintiff Brings Motion for Summary Judgment

by Stephen Bilkis

The motion (seq. No. 1) by the attorney for the Third-Party Defendant County of Nassau (the County) for an order pursuant to CPLR 3212 granting Summary Judgment dismissing the Third-Party complaint and all cross-claims against the County of Nassau is granted. Cross-motion (seq. No. 2) by the attorneys for JEF for an order pursuant to CPLR §3212 granting Summary Judgment to the Defendant JEF and severing and dismissing the complaint and all cross-claims and counterclaims against said Defendant, on the ground that JEF is not individually liable for the torts or breach of contract, if any, of his co-Defendant F & F, P.C., of which Defendant JEF was at all relevant times president and sole shareholder is granted.

NS was born at Nassau County Medical Center on December 25, 1983. A medical malpractice action was commenced on her behalf against the County in 1984. JS, the mother of the Plaintiff who retained F & F, P.C. (F&F) to represent her daughter in the medical malpractice action died on April 1, 1992 during the pendency of the lawsuit. Letters of Administration were issued to JS’s daughter, MS, who was substituted as Plaintiff in the malpractice suit on behalf of the Estate of JS. The malpractice action was settled for $450,000 in 1993. Pursuant to the terms of the infant’s compromise orders (ICO) dated June 2, 1994 and modified January 31, 1995 the County was to issue a check payable to an officer of Defendant ML for the benefit of NS in the amount of $299,500.00 ($450,000.00 less attorney’s fees) and other disbursements. The funds ($299,500.00) were to be deposited by ML in investment accounts for the benefit of NS. Although the County timely issued the check in July 1994, sent it to F&F, who forwarded it to ML, the instrument was never cashed, and no account ever established. The original check was never negotiated or presented for payment. ML returned the original check to F&F with a request that an amended or modified ICO be obtained, to specify that the infant NS’s grandmother EMD (with whom the infant was living in Alabama) be identified as custodian of the infant’s account, and authorize ML to pay income taxes on behalf of the infant on the interest earned. F&F obtained a modified ICO in the malpractice action on January 31, 1995. An attorney working on an “of counsel” capacity for F&F on the malpractice action, forwarded a copy of the modified ICO to EMD, on February 5, 1999 and wrote to ML on February 6, 1999, enclosing the original and modified ICO’s and the check dated July 21, 1994 in the sum of $299,500. ML received the July 21, 1994 check in the sum of $299,500, but failed to open the infant account pursuant to the modified ICO or notify any of the parties that the check was missing.

Published on: January 13, 2016

Plaintiff Files Motion to Dismiss

by Stephen Bilkis

The petitioner/landlord, commenced this holdover proceeding to recover possession of the Section 8 leasehold premises from respondent/tenant, seeking to terminate the month-to-month tenancy. Tenant moves to dismiss the petition in lieu of answering upon grounds that the notice to terminate and petition are legally insufficient and that petitioner’s acceptance of rent after the notice to terminate was sent nullified the effect of the notice. Landlord opposes the motion to dismiss and maintains that it is untimely pursuant to Justice Court Act §1002.

The parties entered into a lease under the Section 8 Tenant Based Assistance Housing Choice Voucher Program, which was executed in October of 2003. Under paragraph 6 of Part A of the lease, the initial term ended on October 31, 2004, at which time the lease automatically renewed on a month-to-month basis. The lease provides that all notices made by owner or tenant must be in writing and makes no reference to landlord’s attorney or agent.

Published on: January 12, 2016

Court Discusses Problems With Trust Language

by Stephen Bilkis

After providing for a number of bequests, legacies and trusts in various articles of her last will and testament, Maude S. W. McKay, the decedent, disposed of the residue of her estate in the following language

‘TENTH:–All the rest, residue and remainder of my Estate, both real and personal, and wheresoever situate, I give, devise and bequeath unto The Ministers & Missionaries Benefit Board of the Northern Baptist Convention, a corporation of the State of New York, to be invested and reinvested and the income applied to the objects of said organization.

Published on: January 11, 2016

Wife Brings De Novo Hearing Regarding Support

by Stephen Bilkis

The family case at bar involves a petition for support filed pursuant to the Florida Uniform Reciprocal Enforcement of Support Law. The petitioner-wife seeks a de novo hearing relative to support for the two children of the parties’ marriage as well as support for herself. Respondent-husband, a Suffolk County resident, opposes the petition on the basis that there is presently an existing support order emanating from the Nassau County Family Court and, therefore, the petitioner’s application should be treated as one seeking an upward modification of an order of another court. Respondent contends that the Family Court may transfer the within matter pursuant to Family Court Act Sections 171 and 174 and, therefore, justify this court’s denial of a de novo hearing.

Section 41(1) of the Domestic Relations Law provides that the Uniform Support of Dependents Law ‘. . . shall be construed to furnish an additional or alternative civil remedy and shall in no way affect or impair any other remedy, civil or criminal, provided in any other statute and available to the petitioner in relation to the same subject matter.’ Section 411 of the Family Court Act provides the Family Court with exclusive original jurisdiction over support proceedings initiated under both Article 4 of the Family Court Act and in proceedings under Article 3-A of the Domestic Relations Law, known as the Uniform Support of Dependents Law. In light of this original jurisdiction and the above mentioned Section 41(1) of the Domestic Relations Law, petitioner had a choice to proceed under either the Uniform Support of Dependents Law or seek a transfer of the pending case from Nassau County and then an upward modification and enforcement of that Family Court order pursuant to the Family Court Act.

Published on: January 11, 2016

Plaintiff Brings Case for Interpretation of Real Property Law 451

by Stephen Bilkis

The following statements of fact were found by the trial court: The defendant United States Cremation Company, Limited, is a domestic stock corporation organized in 1884 under the General Business Law (Consol. Laws, c. 20). Among the powers granted by its certificate of incorporation is the right to cremate dead human bodies and to conduct a crematory and columbarium. The defendant has operated a crematory at Fresh Pond in Queens County since 1884. It now is in the process of establishing and erecting a crematory in Nassau County. It is the owner of approximately 27 acres of land located in Central Park (now called Bethpage), town of Oyster Bay, Nassau county. Edwin C. Moore is the owner of approximately 45 acres of land which adjoins that of the defendant on the west. The land of both parties fronts on the south side of the Hempstead-Farmingdale turnpike, which leads to Pinelawn Cemetery, about three miles east. This land of the defendant is located in the district defined by the zoning ordinance of the town of Oyster Bay as a Business H District, and was so placed in a resolution of the town board of the town of Oyster Bay on May 28, 1934, after due notice and hearing. Among the uses permitted in Business H District is that of a crematory and mortuary. On June 6, 1934, a permit was issued by the duly authorized official of the town of Oyster Bay, to wit, the building inspector, to erect and operate a crematory; and immediately thereafter the defendant entered into a contract for the erection and completion of its crematory except for the retorts. Work was commenced the same day the permit was issued.

On the 17th day of August, 1934, a resident taxpayer of the town of Oyster Bay, instituted a mandamus suit in the Supreme Court to compel the town board to revoke the building permit and to compel the said town board to set aside the resolution which placed the land in a Business H District. The application for the mandamus was denied all the way through to the Court of Appeals. This suit related solely to the zoning resolution, no point being raised as to the state statute prohibiting the erection of crematories.