New York Family Law Blog

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

Published on: November 10, 2015

Petitioner Requests Entry of Money Judgment

by Stephen Bilkis

This is an application pursuant to Section 460 of the Family Court Act for an order directing the entry of a money judgment in the sum of Three Thousand Three Hundred Twenty ($3,320.00) Dollars, plus costs, on arrears reserved generally by this Court on August 12, 1974.

Petitioner filed a USDL petition on April 4, 1972, in the County of Orange, State of California. Said petition was forwarded to the Nassau County Family Court in accordance with Article 3-A, Section 37, of the Domestic Relations Law. Respondent, a resident of Nassau County, State of New York, appeared on May 12, 1972, and upon his consent, a final order of support was entered ordering respondent to pay the sum of Thirty ($30.00) Dollars per week through the Probation Department for the support and maintenance of one child, effective May 15, 1972.

Published on: November 9, 2015

Petitioner Moves for Dismissal of Charges

by Stephen Bilkis

In this family case, defendant moves this Court for an order, pursuant to Criminal Procedure Law § 170.30(1)(f), dismissing the charge of Assault in the Third Degree on the grounds that there exists a legal impediment to conviction.

The Complainant executed a misdemeanor information on December 8, 1990, alleging that her former husband intentionally caused physical injury to her on December 8, 1990 at 6:10 p.m. in the Village of Hastings-on-Hudson, New York.

On December 10, 1990, Complainant filed a Family Offense Petition in the Family Court of the State of New York, County of Westchester, alleging that Respondent on December 8, 1990 committed acts against her which constituted harassment and assault in the third degree. The specific allegations of the petition concerned the same incident that formed the basis for the misdemeanor information.

Published on: November 7, 2015

Petitioners Contend with Complicated 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 preadoption 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 charged by the principals involved may not be entirely allowable under New York State law.

Published on: November 6, 2015

Court Resolve Case Regarding Interference With Visitation

by Stephen Bilkis

It has been observed by our court that “the natural right of visitation jointly enjoyed by the noncustodial parent and the child is more precious than any property right” and that “the best interests of the child would be furthered by the child being nurtured and guided by both of the natural parents”. Indeed, a custodial parent’s interference with the relationship between a child and a noncustodial parent has been said to be “an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent”. Such interference with the relationship between a child and a noncustodial parent can take many forms, the obvious being the outright denial of visitation by making the child physically unavailable at the appointed time. However, the instant case involves a more subtle and insidious form of interference, a form of interference which, in many respects, has the potential for greater and more permanent damage to the emotional psyche of a young child than other forms of interference; namely, the psychological poisoning of a young person’s mind to turn him or her away from the noncustodial parent. In this case, if left with their mother, the children would have no relationship with their father given the mother’s constant and consistent single-minded teaching of the children that their father is dangerous. She has demonstrated that she is unable and unwilling to support the father’s visitation; and it was, therefore, an improvident exercise of discretion to deny the father’s petition for a change of custody.

The parties herein were married on August 21, 1982, and had four children together. The father left the marital residence in November 1988, and a divorce action was commenced the following month. Following a trial on the issues of equitable distribution, support, and maintenance held in April 1991, a memorandum decision was issued on June 1, 1992. Although the father had, during the early stages of the divorce action, stipulated to the mother having custody of the children, he moved, by order to show cause dated June 17, 1992, inter alia, for a change of custody to him, with the mother to be given only supervised visitation based upon what he claimed to be the mother’s “bizarre and dangerous behavior” which was “calculated to destroy the children’s relationship with him”.

Published on: November 5, 2015

Plaintiff has the burden to Establish Entitlement to Judgment

by Stephen Bilkis

In this action, plaintiff is seeking to foreclose on a consolidated mortgage dated November 15, 1988 given by it to East Coast and encumbering the property located at 1078-1080 Utica Avenue in Brooklyn. By deed dated August 15, 2007, East Coast sold the mortgaged property to 1080. During oral argument, 1080 represented that it was willing to bring the mortgage current to settle the action, which offer was accepted by plaintiff. After numerous adjournments, however, it appears that the parties were unable to agree to the amount due.

With regard to 1080, plaintiff avers that none of the six affirmative defenses interposed in its answer have any merit in truth or fact. In this regard, plaintiff asserts that 1080’s claim that plaintiff did not acquire jurisdiction over it is refuted by the receipt from the Secretary of State that establishes that the corporation was properly served. Plaintiff also contends that the second affirmative defense in which 1080 alleges that when the property was purchased on August 15, 2007, the principals were told that all of the existing mortgages were current, was untrue in that there were two mortgages on the premises that were in arrears at the time. In addition, the third affirmative defense in which 1080 alleges that plaintiff advised the corporation that the two brothers owning plaintiff were involved in a dispute, so that 1080 should not make any further payments on the mortgage, is not accurate. Alvin explains that his attorney had a conversation with 1080’s attorney during which it was stated that there was a dispute concerning the first mortgage, which is held by him and his brother, in their individual capacities, not the second mortgage that he is seeking to foreclose herein. Plaintiff further avers that the fourth, fifth and sixth affirmative defenses in which 1080 alleges that the instant action is barred by the doctrines of estoppel, waiver and/or unclean hands are legally insufficient to preclude an award of summary judgment in its favor.