New York Family Law Blog

Published on: July 12, 2015

Plaintiff Claims There is No Triable Issue of Fact

by Stephen Bilkis

The defendant moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiff’s verified complaint as there exists no triable issue of material fact with respect to the defendant’s liability for the plaintiff’s alleged injuries. The plaintiff cross moves for an order pursuant to CPLR 3025 (b) granting the plaintiff leave to amend the verified complaint to plead with further clarification the relationship between the defendant and the Old Brookville Police Department, and an order pursuant to CPLR 3212 granting summary judgment on the plaintiff’s cause of action for false arrest and false imprisonment. Both parties oppose the other party’s motion. The plaintiff seeks damages in the underlying action for personal and emotional injuries sustained on August 2, 2005, incident to the plaintiff’s alleged false arrest and false imprisonment by the Old Brookville Police Department.

On August 2, 2005, the plaintiff resided with his wife at their home in Old Brockville. The couple were in the midst of a divorce, and the wife filed a petition in the Nassau County Family Court, under docket number 8265/05, dated July 29, 2005. The wife sought an order of protection against the plaintiff husband in that Family Court proceeding, and the Court issued an order of protection dated November 23, 2005, to wit ordering the plaintiff, date of birth January 1, 1942, to observe the following conditions of behavior: refrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense against the petitioner, date of birth December 5, 1961, wherever the petitioner may be; observe such other conditions as are necessary to further the purposes of protection: the respondent husband to stay away from the petitioner’s bedroom. The Family Court directed the order of protection against the respondent husband remain in effect up to and including May 22, 2006. On August 2, 2005, at approximately 12:20 p.m.

Published on: July 11, 2015

Court Looks at Order to Show Cause to Discontinue Medical Treatment

by Stephen Bilkis

The petitioner having applied to this Court for an Order directing DH (the “Patient”), a patient at Nassau University Medical Center (the “Medical Center”), to show cause why an Order should not be granted authorizing or discontinuing medical treatment for the Patient as set forth in the petition and this application having come on to be heard before the undersigned, a Justice of the Supreme Court of the State of New York, County of Nassau, on the 14th day of November, 2006.

NOW, upon the petition of AG, as President and CEO of the Medical Center, verified on November 13, 2006, and the affirmation of PC, M.D., dated November 13, 2006, and upon the order to show cause granted on November 13, 2006, together with due proof of service thereof, and Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, Allan E. Silver, Esq., of counsel, attorneys for the Medical Center, appearing in support of the application, and David A. Smith, Esq., acting as the Court appointed guardian ad litem, appearing herein to protect the rights and interests of DH, the parents of DH, MD and DH appearing in support of their request to discontinue medical treatment for their son, and a hearing having been held upon the issues raised herein, the court makes the following findings of fact and law.

Published on: July 10, 2015

Petitioner Seeks Reimbursement of Social Assistance Left

by Stephen Bilkis

Mrs. GR, together with her disabled husband and six minor children, are clients of the Nassau County Department of Social Services. Around July 31, 1969, Mrs. GR, who had just cashed her public assistance check, was concededly robbed of the proceeds of that check, leaving her totally without funds for the month of August. Apparently, she requested emergency assistance from the Department, but this request was denied. She thereupon brought this Article 78 proceeding that the Commissioner of the Nassau County Department of Social Services (hereinafter the ‘Commissioner’) be directed to pay her $484, the amount of her monthly assistance check.

After service of the petition upon him, the Commissioner served a Third-party petition upon George K. Wyman, as Commissioner of the Department of Social Services of the State of New York seeking a direction that Commissioner Wyman reimburse him for any funds he was directed to pay to Mrs. GR.

Published on: July 9, 2015

Petitioner Brings Action for Preliminary Injuction

by Stephen Bilkis

This is an application for a preliminary injunction. The proceeding was commenced by Petitioner by order to show cause and petition seeking a judgment declaring him to be the owner of real property located at Merrick, New York (the Property), or imposing a constructive trust. The order to show cause, which was issued on November 9, 2007, contained a temporary restraining order restraining respondent and/or her agents from transferring, selling or otherwise encumbering the Property and from terminating the tenancy of a brokerage) pending the return date of the order to show cause. Jurisdiction is complete.

On December 5, 2007, the court held a hearing on whether a preliminary injunction should issue. The hearing continued on December 6, 2007 and concluded the following day.

Published on: July 9, 2015

Respondent Engaged in Criminal Sex Acts With a Minor

by Stephen Bilkis

In a case, it is alleged that on or about March 12, 2005, at about 5:00 PM, at x New York, Nassau County, State of New York, the respondent engaged in conduct, which if engaged in by a person sixteen (16) years of age or older, would constitute the crimes of Criminal Sexual Act in the First Degree, in violation of Penal Law §130.50(3), a class B Felony; Attempted Criminal Sexual Act in the First Degree, in violation of Penal Law §§110/130.50.(3), a class C Felony; Sexual Abuse in the First Degree, in violation of Penal Law §130.65(3), a class D Felony; Attempted Sexual Abuse in the First Degree, in violation of Penal Law §§110/130.65(3), a class E Felony; and Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1), a class A Misdemeanor.

A Nassau County family lawyer said that the respondent engaged and/or attempted to engage in oral sexual conduct with another person who is less than eleven years old; in that respondent put his mouth on the complainant’s penis. The complainant is six years old.

Published on: July 8, 2015

Petitioner Requests That Court Appointed Attorney Be Relieved of Duties

by Stephen Bilkis

The matter currently before the Court is a motion by the petitioner to have the Court appointed attorney for the child relieved of her duties. The petitioner brought the motion pro se. The subject child of the motion, was appointed law guardian for the child and submitted an affirmation in opposition. The Nassau County Legal Aid Society was appointed to represent the respondent. However, it does not appear as if the petitioner had the respondent served with her motion.

The underlying petitions in this matter were family offense petitions filed by the petitioner against the paternal uncle and the father. The petitions alleged that the uncle sexually abused the subject child, then three years old. The allegations against the respondent-father were that, in light of the fact that he lived in the same home as the seventeen year old uncle, he allowed the abuse to happen.

Published on: July 7, 2015

Court Looks at Determination by Board of Assessors

by Stephen Bilkis

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Assessors of the County of Nassau dated January 5, 1998, which granted the application of the respondent Temple for a renewal of a tax exemption pursuant to Real Property and Tax Law § 420-a for the 1998-1999 school tax year and the 1999 general tax year, the petitioners appeal from a judgment of the Supreme Court, Nassau County, which, upon granting the cross motion of the respondent Temple to dismiss the proceeding, dismissed the proceeding.

The petitioners sought review of a determination of the Board of Assessors of the County of Nassau (hereinafter the Board) that the Temple (hereinafter the Temple), a religious organization chartered in the State of California, was exempt from real estate taxes on its property in Old Westbury, Nassau County. The Supreme Court granted the cross motion of the Temple to dismiss this proceeding finding that the petitioners did not have standing to challenge the Board’s determination and the Board’s determination was not arbitrary and capricious or irrational.

The courts have held that taxpayers in a community have standing to challenge an agency’s determination that a property within the community’s borders is exempted from the tax rolls. The decrease in the tax base that occurs when a property is improperly exempted from taxation has been found to constitute a cognizable injury to such taxpayers. Thus, the Supreme Court erred when it found that the petitioners did not have standing to challenge the instant exemption.

Published on: July 6, 2015

Parties Are Charged With Neglect of Their Child

by Stephen Bilkis

The court is presented with the issue of whether an attorney of record for a set of parties may inspect the court records wherein the parties were charged with neglect of their child when he was not the attorney in such proceeding. The neglect charge in such case was dismissed. The stated purpose of such inspection is to obtain evidence in an action against a doctor who was a witness in such neglect proceedings in the Family Court.

The records of any proceeding in the family court shall not be open to indiscriminate public inspection. However, the court in its discretion in any case may permit the inspection of any papers or records.

Published on: July 5, 2015

Defendant Challenges the Legality of a Search

by Stephen Bilkis

The Defendant is charged with two counts Criminal Possession of a Controlled Substance in the Seventh Degree and Unlawful Fleeing of a Police Officer in the Third Degree, in violation of Penal Law §§ 220.03 and 270.25, respectively, along with Driving While Ability Impaired by Drugs, four counts of Failing to Stop at a Stop Sign, and Passing a Steady Red Light, in violation of VTL §§ 1192(4), 1172(a) and 1111(d)(1), respectively.

A hearing was held to determine issues involving probable cause for the Defendant’s arrest, suppression of all tangible evidence seized from the Defendant and/or his vehicle, and the suppression of statements allegedly made by the Defendant.

Published on: July 4, 2015

Court Discusses the Issue of Equitable Estoppel in Paternity Proceeding

by Stephen Bilkis

The case before the Court was referred by the Support Magistrate on the issue of equitable estoppel in this paternity proceeding. The petitioner began a child support proceeding pursuant to the Uniform Interstate Family Support Act (UIFSA) as she resides in Oregon, and the respondent resides here in Nassau County.

The respondent requested genetic testing for the purpose of denying paternity. A law guardian was assigned to represent the child. The law guardian has moved to have respondent equitably estopped from denying paternity.