New York Family Law Blog

Published on: October 2, 2015

Petition Alleges that Mother Unjustly Receives Public Assistance

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: October 1, 2015

Petitioner Claims that Jurisdiction is Fatally Defective

by Stephen Bilkis

The respondent appears specially, by counsel, contesting the jurisdiction of this court on the ground that the petition is fatally defective, in that it is made wholly on information and belief.

The petition charges the respondent with being a juvenile delinquent in that he committed certain acts in violation of the Penal Law as well as of a local municipal ordinance. The petitioner alleges that he is a person authorized to institute such a proceeding under article 7 of the Family Court Act by reason of the fact that he is one who suffered injury as a result of the said illegal acts of the respondent.

Published on: September 20, 2015

Defendant Claims Lack of Jurisdiction in Court Proceeding

by Stephen Bilkis

The defendant moves, pursuant to CPL 210.20(1)(e) and (h), to dismiss the fourth count of the captioned indictment. In support, he presses two grounds. First, the defendant contends that this court lacks jurisdiction over that charge of Criminal Contempt in the Second Degree. Next, he maintains that trial of this count would constitute double jeopardy in any event.

The court has extensively examined all relevant federal and state constitutional provisions, sections of the Penal Law, Judiciary Law, Criminal Procedure Law and Family Court Act, and case law. Upon that review, it is not convinced that dismissal is warranted on either ground urged by the defense. However, for the reasons set forth below, count four of the indictment is dismissed in the interest of justice. CPL 210.20(1)(i).

Published on: September 19, 2015

Petitioner Moves for Order Granting Judgment

by Stephen Bilkis

In this proceeding, petitioner moves pursuant to CPLR 3212 for an order granting summary judgment: (1) converting the QTIP trust to a unitrust; (2) compelling the sale of the family business interests for fair market value; (3) removing the decedent’s sister as co-trustee and requiring her to file her account; and (4) disqualifying the decedent’s father as successor co-trustee and immediately appointing an independent corporate fiduciary to succeed as co-trustee. For the reasons that follow, the motion is denied, except to the extent that Deborah is directed to file an intermediate account of her acts as co-trustee of the QTIP trust as set forth below.

The decedent died testate on December 7, 2001, leaving his wife, who is now forty-six years old, and two children, who are now twenty and nineteen, respectively. Petitioner and the decedent’s sister are sisters-in-law, the latter having been decedent’s sister. Apparently, the close family relationship that existed between petitioner and the family while decedent was alive has deteriorated.

The decedent’s last will and testament dated October 28, 1998 was admitted to probate by this court in April 2002. Letters testamentary and letters of trusteeship for the QTIP trust established in the will were granted on the same date to the sister and the wife. They qualified as such and have acted and are still acting in those capacities.

Published on: September 9, 2015

Court Discusses Condemnation Proceedings

by Stephen Bilkis

In condemnation proceedings, claimant appeals, as limited by its brief and on the ground of inadequacy, from so much of a partial final decree of the Supreme Court, Nassau County, dated May 2, 1979, as awarded compensation for the improvements on the condemned realty.

In 1954, appellant leased some 361/2 acres of beachfront property on the south shore of Long Island from Ovide de St. Aubin and Manlio Liccione. (Liccione divested himself of his interest in the property prior to this proceeding.) The parties stipulated that their respective interests in the improvements in the property, in the event of condemnation, would be 71.7% to appellant and 28.3% to St. Aubin. These figures were reversed with respect to their respective interests in the land itself. Appellant constructed on the property a large clubhouse for catering, cabanas, lockers, swimming pools, tennis, handball and basketball courts, and other facilities, at a cost of.$2.5 million. The business operation of these facilities was a failure, however, and in 1968, at which time the beach club facilities had a stipulated depreciated value of $1.38 million, the facilities were condemned by the respondent town. From the time of condemnation until the present, the town operated the premises, as had appellant, as catering and recreational facilities. Indeed, the town has not made any substantial structural changes in the improvements on the property. In 1977 it realized an income of approximately $400,000 from the operation of the facilities.

Published on: September 1, 2015

Court Hears Guardianship Proceeding

by Stephen Bilkis

The petition presented in this Art. 81 guardianship proceeding raises two questions that this court has not previously addressed. The first is whether it is appropriate for a facility to petition the court solely for the appointment of a special guardian of the property of an alleged incapacitated person residing in its facility where the sole power sought is to complete the Medicaid application for the facility. The second question that follows is then where there is no healthcare proxy executed by the alleged incapacitated person does the Family Healthcare Decisions Act vitiate the need for a personal needs guardian. Here the court finds that a residential facility/hospital should not petition the court for the appointment of a special guardian for the sole purpose of seeking Medicaid benefits when the patient is clearly incapacitated and clearly needs a guardian of the person as well. For the reasons stated herein the court finds that the Family Healthcare Decisions Act is not a substitute for the appointment of a guardian of the person pursuant to Art. 81 of the Mental Hygiene Law.

The petitioner herein is the administrator of the A. Holly Patterson extended care facility located at 875 Jerusalem Avenue, Uniondale, N.Y. where the alleged incapacitated person, AG, currently resides. He had been taken there after being treated at Nassau University Medical Center for a cerebral vascular accident (also known as CVA). AG is 80 years old and suffers from right hemiparesis, cognitive deficits, and seizure disorder, as well as dementia. He requires a gastrointestinal feeding tube for nutrition due to dysphagia, and is incontinent of bowels. He is bed bound and needs assistance with all activities of daily living. However, the court evaluator indicated in his report to the court that AG had the ability to communicate his wishes and therefore the hearing was held at the facility and AG was present.

Petitioner originally limited its application under Article 81 of the Mental Hygiene Law for the appointment of a special guardian of the property while acknowledging in their application that AG is an incapacitated person. When the court inquired prior to the hearing as to why petitioner did not also move for the appointment of a guardian of the person, petitioner stated that they believed it was not necessary because DA, a son of the alleged incapacitated person, had been located locally and it was the facility’s position that because a surrogate was available the Family Healthcare Decisions Act allows for that surrogate to make all medical decisions for adult patients as needed. Further, even if no surrogate had been found the petitioner’s stated position was that under the Family Healthcare Decisions Act the hospital may make medical decisions for the patient. Therefore, a personal needs guardian was not needed.

Published on: August 31, 2015

Court Decides Private Placement Adoption

by Stephen Bilkis

In this private placement adoption the natural mother of the subject child, born on October 21, 1976, and her husband, the alleged father, by order to show cause dated November 17, 1977 request an order: (1) vacating and setting aside the natural mother’s consent to the subject child’s adoption; (2) dismissing the adoption proceeding filed by the respondents; (3) requesting the court to determine the custody of the child; and (4) directing the respondents to deliver the subject child to the petitioners.

Following extensive and protracted pre-trial discovery by all parties, testimony was heard by Surrogate for 16 days commencing November 17, 1978 and concluding on July 1, 1980. The transcript is in excess of 2,100 pages with 23 exhibits in evidence. During the course of the discovery and hearing, the court rendered 8 decisions, and the guardian ad litem appointed by the court to represent the interests of the child filed 3 interim and 1 final report. On July 31, 1980, before he could render a decision, Surrogate retired, which requires this court to render a decision on a bitterly contested matter which it did not hear.

Published on: August 30, 2015

Husband and Wife Dispute Separate Property

by Stephen Bilkis

The petitioner and respondent were married on September 26, 1996, and were living together, with their children, in the marital residence located at 245 Hallman Avenue, Oceanside, New York 11572. A divorce proceeding was brought 8 years later in 2004, and the divorce was finalized by a judgment of divorce rendered in the Nassau County Supreme Court on September 8, 2008. The judgment of divorce regarded the marital domicile as a “separate property of [the husband].” Furthermore, it was adjudged that the wife must “remove from the former marital residence no later than 3 months following the entry of final judgment.” If the wife was unable to obtain suitable housing in the area, the judgment of divorce provided that respondent may “move for a reasonable extension of this deadline upon showing a bona fide diligent effort.” However, before the divorce was finalized, petitioner claims that respondent entered into possession of the marital residence by way of an oral license made on October 31, 2007, which expired on March 30, 2009. Thus, accordingly, on March 19, 2009, a 10-day notice to quit was served upon the respondent, requiring her to vacate from the subject premises by March 30, 2009. The respondent, however, has failed to surrender possession of the marital residence.

By motion dated July 12, 2009, the respondent, and now former wife of petitioner, seeks to dismiss the instant holdover proceeding instituted by her ex-husband. The respondent asserts three affirmative defenses in which she denies that an oral license agreement was entered into on October 31, 2007 and alleges that she is not a licensee, but a tenant, and thus, cannot be evicted in a summary proceeding. Additionally, respondent claims that she is entitled to a 30-day notice to quit, as opposed to a 10-day notice to quit. According to the affidavit submitted by the respondent, the respondent claims that the petition is defective in several respects: (1) The petitioner failed to serve respondent with a 30-day notice to vacate making the petition materially defective. (2) The petitioner alleged that respondent is a tenant, but served only a 10-day notice to quit. (3) In the alternative, the proper forum to decide all issues of possession is the Nassau County Supreme Court.

Published on: August 29, 2015

Interesting Case Regarding Invitro Fertilization

by Stephen Bilkis

The instant case presents this court with issues of first impression in New York regarding the status and ultimate disposition of fertilized human ova that are the product of an in vitro fertilization (hereinafter IVF) procedure in which one of the prospective parents no longer wishes to participate. Although the parties have raised, inter alia, various fundamental legal and policy arguments in support of their respective positions, we conclude that this controversy is governed by the intent of the parties as clearly expressed in the provisions of an informed consent document which they voluntarily executed as participants in the IVF program and in a subsequent “uncontested divorce” instrument which they executed shortly thereafter, both of which manifest their mutual election that the IVF program should retain the cryopreserved pre-zygotes for approved research purposes under the circumstances of this case. Furthermore, by stipulating to the decision of this matter on submissions, the parties have charted their own course and the plaintiff, not having submitted sufficient evidence to support her contentions, cannot prevail.

The plaintiff and the defendant were married on July 4, 1988. Apparently as a result of her in utero exposure to Diethylstilbistrol (DES), the plaintiff experienced difficulty in conceiving a child through coital relations. Accordingly, the parties enrolled in the Long Island IVF program at John T. Mather Memorial Hospital and at that time executed a “General IVF Consent Form No. 1”. It is undisputed that the parties underwent 10 unsuccessful attempts to have a child through IVF between March 1990 and June 1993, at a total cost in excess of $75,000. The last of these procedures commenced in May 1993. On May 12, 1993, prior to the procedure, the parties executed a single, seven-page informed consent document dealing with cryopreservation and consisting of two sections, to wit: “INFORMED CONSENT FORM NO. 2: CRYOPRESERVATION OF HUMAN PRE-ZYGOTES”, comprising pages one to five of the document, and “INFORMED CONSENT FORM NO. 2–ADDENDUM NO. 2-1: CRYOPRESERVATION–STATEMENT OF DISPOSITION”, consisting of pages six and seven. Insofar as relevant, the first section of the document contained the following general language regarding cryopreservation: “III Disposition of Pre-Zygotes. “We understand that our frozen pre-zygotes will be stored for a maximum of 5 years. We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law. In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction. Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage.

Published on: August 28, 2015

Court Decides Child Neglect Case

by Stephen Bilkis

The issue before this Court is whether a finding of neglect as to a newborn and the newborn’s older sibling may be based solely on the newborn’s positive toxicology for a controlled substance. We conclude that more than a positive toxicology is generally required for a neglect determination. We affirm in this case because, as the Appellate Division concluded, there is additional evidence in the record supporting the Family Court’s findings of neglect.

The appellant gave birth to her son in November 1990. Both mother and son tested positive for cocaine. After learning of the positive toxicologies, the Nassau County Department of Social Services (DSS) brought a petition pursuant to section 1022 of the Family Court Act to temporarily remove Dante from appellant’s care. Family Court conducted a hearing on the removal petition on November 21, 1990.

At the hearing, DSS presented evidence that the son was born with a positive toxicology for cocaine and a low birth weight. DSS also presented evidence that appellant had a history of cocaine abuse, had been admitted to several drug rehabilitation centers, and that appellant’s mother had custody of two of appellant’s children because appellant’s drug use rendered her incapable of caring for them. Appellant’s mother informed DSS that she had observed appellant high on cocaine in the last weeks of appellant’s pregnancy with the son. Appellant told DSS that she smoked a cigarette at a Halloween party at the end of her pregnancy which may have contained cocaine.