New York Family Law Blog

Published on: November 17, 2015

Plaintiff Brings Case Regarding Collateral Estoppel

by Stephen Bilkis

The defendants contend the doctrine of collateral estoppel is applicable and would warrant a dismissal of these proceedings. On or about June 22, 1969, five youths were arraigned upon a complaint in the First District Court, Nassau County, New York, charged with violation of New York State Penal Law § 105.10 in that on June 21, 1969 at about 3:45 P.M. near the Southern State Parkway and Corona Avenue in North Valley Stream, Nassau County, New York, ‘the said defendants and each of them and each acting in concert with and aided and abetted by each other, with intent that conduct constituting a felony be performed did each agree with the other to engage in or cause performance of such conduct, to wit: the said defendants with the intent to violate § 130.35 of the Penal Law of the State of New York when by forcible compulsion they engaged in sexual intercourse with the complainant.’

Four of the youths were subsequently indicted by the Nassau County Grand Jury on July 16, 1969 for the crimes of Rape in the First Degree (P.L. § 130.35) and Sexual Abuse in the First Degree (P.L. § 130.65) and arraigned in the Nassau County Court under indictment number 27613. The fifth boy was less than 16 years of age at the time of the alleged criminal acts and was charged with being a juvenile delinquent in the Family Court of Nassau County under Article 7 of the New York State Family Court Act.

Published on: November 16, 2015

Plaintiff Brings Motion to Renew Prior Motion to Dismiss

by Stephen Bilkis

In this family case, the Defendants bring this motion seeking to reargue and renew their prior motion to dismiss, pursuant to CPLR §§ 3211 and 327, which resulted in an order of this court denying the motion. The Plaintiff opposes the present motion. Before addressing the substance of the Defendants’ present motion it is worthwhile to review the nature of the underlying action, the Defendants’ prior motion and the claims made therein. A Nassau County lawyer said that this is an action to recover monies allegedly due and owing pursuant to an equipment rental agreement (the “Agreement”) entered into by the defendant corporation and the Plaintiff’s assignor, guaranteed by the Defendant, the President of the corporation for the lease of telecommunication equipment and services.

This is an action to recover monies allegedly due and owing pursuant to an equipment rental agreement (the “Agreement”) entered into by the defendant corporation and the Plaintiff’s assignor, guaranteed by the Defendant, the President of the corporation for the lease of telecommunication equipment and services.

Published on: November 16, 2015

Plaintiff Brings Case Regarding Freedom of Information Act

by Stephen Bilkis

This is a hybrid proceeding for relief under the Freedom of Information Law (“FOIL”), set forth in Article 6 of the Public Officers Law,§§ 84-90, and for related declaratory and mandamus relief. Petitioner/plaintiff asserts that the respondent/defendant Nassau County Police Department (“NCPD” or “respondent”) has violated FOIL by consistently failing to respond properly to legitimate requests for information and documents.

It seeks not only a vacatur of denials for certain information, but also a declaration by the Court that NCPD has engaged in a pattern and practice of refusing to obey the law, and a judgment in mandamus directing the NCPD to do what it is bound to do under FOIL. It also seeks a related direction ordering respondent, in effect, to certify to the Court annually that it is in compliance with the statute. Finally, petitioner seeks to recoup its costs, including legal fees, expended in its efforts to obtain the information sought.

Published on: November 16, 2015

Court Listens to Case to Terminate Parental Rights

by Stephen Bilkis

In a child neglect proceeding pursuant to Family Court Act article 10, and a related proceeding pursuant to Social Services Law § 384–b to terminate parental rights, the mother appeals from (1) an order of the Family Court, Nassau County, dated December 18, 2009, and (2) an order of fact-finding and disposition of the same court dated May 11, 2010, which, after fact-finding and dispositional hearings, found that she had permanently neglected the subject child, terminated her parental rights as to the subject child, and placed the child in the guardianship and custody of the Nassau County Department of Social Services for the purpose of adoption.

“In proceedings to terminate parental rights based on permanent neglect, the agency must establish as a threshold matter that it made diligent efforts to encourage and strengthen the parental relationship”. However, evidence of diligent efforts on the part of the agency are not required when “the parent has failed for a period of six months to keep the agency apprised of his or her location, provided that the court may consider the particular delays or barriers an incarcerated parent may experience in keeping the agency apprised of his or her location”.

Published on: November 15, 2015

Motion Brought By Social Services Request DNA Testing

by Stephen Bilkis

This is a case where a motion was brought by the Deputy County Attorney’s Office, on behalf of the Nassau County Department of Social Services, seeking to have the Court direct the respondent to submit to DNA testing for the purpose of establishing paternity of the subject child. Both the respondent and law guardian submitted opposition papers invoking the doctrine of equitable estoppel, arguing that the child has an intact father-child relationship with another individual.

This matter was initiated when the Department filed a petition for paternity and support against respondent. The Magistrate presided, and referred the matter to this Court once the issue of equitable estoppel was raised.

Published on: November 15, 2015

Plaintiff Alleges Negligent Care of Individual Who was in Care of the Defendant

by Stephen Bilkis

This action arises from the defendant’s treatment in 1982 of plaintiff a 36-year-old individual who was born severely mentally retarded and blind. While he was treated by defendant, plaintiff was a resident of an intermediate care facility of the United Cerebral Palsy Association of Nassau, Inc. (hereinafter UCPA).

Plaintiff had been institutionalized his whole life and, from 1972 until 1981, resided at the Suffolk Developmental Center. In an effort to control his increasingly severe episodes of self-abusive behavior, in 1978 his primary physician at the facility, the doctor began administering Haldol to him. The doctor viewed Haldol as the “drug of choice” in eliminating such behavior. The drug was initially administered in low dosages, which were gradually increased in small increments, during which time plaintiff was carefully monitored for any signs of Haldol-related side effects. Over the course of the following 13 months, the dosage was gradually reduced again to that of four milligrams per day, considered optimal by the doctor inasmuch as the likelihood of side effects was low and his severe self-injurious behavior was contained.

Published on: November 14, 2015

Court Weighs in on Reasonable Certainty Standard Regarding Evidence

by Stephen Bilkis

The instant appeal provides us with an occasion to discuss in detail the “reasonable certainty” evidentiary standard of CPLR 4545 (c) that governs collateral source hearings, as decisional authority on the subject is sparse.

During the early morning hours of a rainy January 13, 1995, the plaintiff MK was riding in the front passenger seat of a vehicle owned and operated by the defendant KOP. As KOP proceeded along Quaker Meeting House Road in Farmingdale at approximately 30 miles per hour, the car hydroplaned off the road and crashed into a tree, causing MK to sustain fractures to her ankle and C2 vertebra. Subsequently, MK commenced this action against KOP, as well as the defendant County of Nassau, alleging as the bases for recovery KOP’s negligent operation of the vehicle and the County’s negligent road design. Prior to trial, in an order dated August 26, 2004, the Supreme Court determined that the County was collaterally estopped from arguing that the road was not negligently designed based upon prior decisions of this Court in Furino v County of Nassau and Zawacki v County of Nassau. After a trial on the issue of liability, the jury found, on October 21, 2004, that the negligence of both KOP and the County were substantial factors contributing to the accident’s occurrence, and apportioned 13% of fault to KOP and 87% of fault to the County.

Published on: November 14, 2015

Is Adopted Child Entitled to Trust Estate of Biological Parents?

by Stephen Bilkis

The question presented is whether a child born out of wedlock, who is adopted out of his biological family at birth, is entitled to a share of a trust estate devised by his biological grandmother to her daughter’s issue. The Surrogate’s Court entered a decree in the child’s favor, which has been unanimously affirmed by the Appellate Division. We granted leave to appeal and now reverse.

The decedent died in 1973, leaving a will which provided for a residuary trust. Her daughter, was designated as the income beneficiary. Upon her daughter’s death, the trustees were directed to “divide trust fund into as many shares or parts as there shall be issue and to continue to hold each of such shares or parts in trust during the life of one of said persons.” The remainder is to be paid to the surviving descendants at the latest possible date consistent with the Rule against Perpetuities.

Published on: November 12, 2015

Court Discusses Complex Tax Issue

by Stephen Bilkis

The decedent a bachelor, died on November 9, 1918, at the age of 75. His only near relatives living at the time of his death were his sister, and her descendants. There were no other kinsmen of nearer relationship than second cousin one degree removed. The decedent stated in his will that his sister and her family had been amply provided for by the will of his father. By his will, dated May 23, 1917, he gave all of his residuary estate, amounting to nearly $1,000,000, to the Family Association, a corporation organized in January, 1910, under the laws of the state of New York, ‘to have and to hold to the said association, its successors and assigns forever.’

The corporation having duly accepted the bequest, an order of the surrogate of Nassau county was duly made and entered imposing a tax upon the transfer thus made [232 N.Y. 368]pursuant to article 10 of the Tax Law (Consol. Laws, c. 60). The Family Association, claiming that it was a charitable corporation, and entitled to an exemption under section 221 of the Tax Law, appealed to the Appellate Division, which sustained this claim, and reversed the order of the surrogate. It remains for us, therefore, to determine on this appeal which court has been correct, the Surrogate’s Court or the Appellate Division, the former holding that the association is not a charitable corporation and the latter that it is.

Published on: November 11, 2015

Plaintiff Files Motion for Intervention and Preliminary Injunction

by Stephen Bilkis

That upon the following papers numbered 1 to 41 read on these motions for intervention and preliminary injunction; Order to Show Cause and supporting papers 1-10: 11-20 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 21 – 37 ; Replying Affidavits and supporting papers 38-41 ; Other _; (and after hearing counsel in support and opposed to the motion) it is,

Ordered that the within two (2) separate orders to show cause by independent proposed plaintiff-intervenors, DR and SR respectively, are consolidated for determination herein, and are granted. The applicants seek leave to intervene in the above-indexed action as party plaintiffs and on behalf of their eligible minor dependent children; and it is