New York Family Law Blog

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.

Published on: January 10, 2016

Father Accused of Sexual Abuse of Four Children

by Stephen Bilkis

In this case, respondent mother is the mother of the four subject children. The father is the father of these children and a person legally responsible for them, resides in Grenada where the children resided with a maternal aunt and visited with their father until the summer of 2005. During the years that the twins resided in Grenada, they had telephone contact with respondent mother, however, they rarely saw her.

On January 4, 2007, New York City Children’s Services (hereinafter, “NYCCS”) filed abuse and neglect petitions against respondent mother and respondent father in Kings County Family Court. The petitions alleged that respondent father committed a sex offense against the child. The above incidents were alleged to be in violation of article 130 of Penal Law, including but not limited to §§ 130.20 (sexual misconduct),1 130.65 (sexual abuse in the second degree),2 and 260.10 (endangering the welfare of a minor).

Published on: January 9, 2016

Grandfather Seeks Guardianship of Children

by Stephen Bilkis

In July, 1977, defendant Department of Social Services of the County of Nassau (hereinafter DSS) placed a four-year-old child and his sister in the foster home of defendant Margaret Toomer after the infant’s natural mother was sentenced to prison. Subsequent to placement, the DSS received several reports that the infant was being “beaten” and otherwise “abused” by the foster mother. DSS employees allegedly investigated the complaints and determined that the child should remain in guardian’s care pending completion of their investigation.

On or about November 17, 1978, the decedent’s grandfather and administrator of his estate, commenced the present action against the County of Nassau, the DSS and the guardian. The cause of action against the county defendants asserted, in effect, that they were negligent in placing the infant in guardian’s care, investigating the complaints of abuse against her, and failing to remove the infant from her care. Initially, the county defendants denied these allegations, and then, on April 30, 1984, some five years after the service of the answer, moved for leave to amend their answer to interpose the affirmative defense of immunity and for summary judgment dismissing the complaint insofar as it was asserted against them.

Published on: January 7, 2016

Plaintiff Moves for Motion to Dismiss for Failure to File Timely Complaint

by Stephen Bilkis

The defendant moves by order to show cause for the following relief: for an order pursuant to CPLR §§ 327 and 3012(b) as follows: a) granting defendant dismissal of this action by virtue of the plaintiff’s failure to timely serve a complaint; b) granting defendant a dismissal of this action on the ground that this court does not have jurisdiction over his person which has not resided in New York since 1999; c) granting defendant a dismissal of this action on the ground of forum non conveniens in light of the Brazilian action pending since 2002; d) in the alternative, granting defendant a stay of these proceedings pending completion of the 2002 Brazilian action.

In this matrimonial action, the defendant is a Brazilian citizen while plaintiff enjoys dual citizenship with the United States and Brazil. The parties met in 1988 when plaintiff was visiting a friend in Brazil. Thereafter, defendant decided to move to New York to be with plaintiff and the parties were married in a civil ceremony in the state of New York on February 27, 1989.

Published on: January 6, 2016

Court Discusses Preserving Issues for Appeal

by Stephen Bilkis

In a proceeding under article 78 of the former Civil Practice Act, against the respondents, the People, the District Attorney and the County Court of Nassau County, petitioner appeals from an order of the Supreme Court, Nassau County, dated March 14, 1963, which dismissed the petition (see opinion 38 Misc.2d 710, 238 N.Y.S.2d 864).

This proceeding has a dual purpose. It is in the nature of prohibition to prevent the respondents from proceeding with the criminal prosecution in the Nassau County Court of the pending indictment against petitioner for his (first degree) assault upon his wife. It is also in the nature of mandamus to compel the transfer of the pending criminal action against petitioner from the County Court to the new Family Court (N.Y. Const. art. 6, § 13; Family Court Act [L.1962, ch. 686, as amended, eff. September 1, 1962]).

Published on: January 6, 2016

Court Decides How Certain Taxes Should Be Paid

by Stephen Bilkis

On December 28, 1992, executed a will that made specific bequests to his wife, son and other family members. The will also left $16,500 to three charities and created a trust for the benefit of his wife and son. On December 17, 1997, the testator executed a trust that, at the time of his death, made pre-residuary distributions to family members and left $16,500 to the same three charities. The residuary went into a marital trust for Ruth. It is claimed that at this time the testator had assets of approximately $10,000,000.

On April 6, 2001, the testator created a second trust that included pre-residuary dispositions to his son and a marital trust for his wife. Upon her death, the greater of $15,000,000 or 25% of the trust principal would go to his son, with the remainder to two charitable lead trusts (CLTs) for the benefit of WCA Hospital, Jamestown Community College, and five public libraries. At that time, the testator was worth approximately $19,000,000.

Published on: January 5, 2016

Petitioner Files Suit Against Society for the Prevention of Cruelty to Children

by Stephen Bilkis

The Attorney General brings this action under the Not-for-Profit Corporation Law (“NPCL”) and Article 8 of the Estates, Powers and Trusts Law to obtain injunctive relief against respondent Long Island Society for the Prevention of Cruelty to Children (“LISPCC”) and its officers and directors.

The Long Island SPCC was incorporated as a non-profit corporation under NPCL § 1403. SPCCs have an unusual status under the law. Although they are not governmental agencies, they are given some quasi-governmental powers in order to effectuate the corporate purpose of protecting children from abuse or neglect. For example, the Long Island SPCC may initiate and participate in court proceedings involving child abuse or neglect (NPCL § 1403(b)(1), Family Court Act § 1032 and Judiciary Law §§ 478 and 484), take children who are the victims of abuse and neglect into protective custody (Social Services Law § 417, Family Court Act § 1024), be appointed guardian of the person of a minor or receive or retain, at its own expense, abused or neglected children pursuant to court order [NPCL § 1403(b)(3) ]. Also, the officers and agents of the Long Island [163 Misc.2d 656] SPCC are peace officers who may acquire handguns and make arrests, providing they are acting in furtherance of the SPCC’s child protective mandate (Criminal Procedure Law §§ 2.10 [7-A], 2.20 and 140.25). However, the agents of the SPCCs are not permitted to represent themselves as police officers.

Published on: January 5, 2016

Court Discusses Attorney Confidential Privledge

by Stephen Bilkis

In a case that is one of first impression, this court is confronted with two novel questions: does the attorney confidential privilege survive the death of the client? And, if indeed the privilege does survive, under what circumstances, if any, may the court pierce through the veil of confidentiality?

The defendant, AV, was indicted on January 15, 2002 by a grand jury of the County of Nassau, New York, for the death of RH. The charges are murder in the second degree as an intentional act under Penal Law Â§ 125.25 (1), and murder in the second degree under circumstances involving a depraved indifference to human life under Penal Law Â§ 125.25 (2). The crime predates the 1995 statutory amendments to the Penal Law, and as such is not a capital offense.