New York Family Law Blog

Published on: July 21, 2015

Petitioners Bring Case Regarding Food Stamp Benefits

by Stephen Bilkis

Petitioners/plaintiffs commenced this hybrid proceeding/class action in June 2006, challenging reductions in their food stamp benefits. The reductions were made pursuant to a pilot project entitled the Group Home Standardized Benefit Program (“GHSBP”), instituted by Respondent/Defendant who is the Commissioner of the Office of Temporary and Disability Assistance (“OTDA”) of the New York State Department of Family Assistance.

In the course of the proceedings herein, Plaintiffs were granted partial summary judgment on their claim that the State Defendant’s implementation of GHSBP violated the state constitutional and statutory rulemaking requirements, Intervenor was granted leave to intervene, the application for certification of the Plaintiff class was denied, and the State Defendant’s motion for summary judgment was denied. By decision and order dated May 19, 2009, the Appellate Division, Second Department, reversed the denial of class certification and identified the Plaintiff class as “consisting of all recipients of food stamps in the State of New York whose food stamp benefits were determined and reduced under the Group Home Standardized Benefit Program and whose monthly income included payments of Supplemental Security Income benefits.

Published on: July 19, 2015

Father Appeals Custody Hearing Awarding Custody to Grandparents

by Stephen Bilkis

This is an appeal by the father of an 11-year old boy (1) from an order of the Family Court, Nassau County, entered July 31, 1973, which, without a hearing, awarded custody of the boy jointly to the 74-year old maternal grandmother and his 21-year old sister and the latter’s 20-year old husband, with visitation granted to the father, and (2) from so much of an order of the Supreme Court, Nassau County, entered October 17, 1973, as referred and remanded the question of custody to the Family Court, Nassau County, for a full hearing and determination.

At issue in these appeals is the custody of an 11-year old boy. The boy was three months old when his parents separated in November, 1962. Custody was with his mother until she died on February 9, 1973. The boy then remained with his sister. Within a month after the death of the boy’s mother, his father sought custody in the Family Court, Nassau County, as did the sister and her husband and the maternal grandmother. On the basis of a conversation with the boy, a report of the Family Court Mental Health Clinic and a report of the Nassau County Probation Department, but without a hearing, the Family Court awarded custody to respondents.

Published on: July 18, 2015

Court Listens to Two Related Cases Pursuant to Social Services Law 384b

by Stephen Bilkis

The two cases below are about family law and proceedings.

The first case deals with two related proceedings pursuant to Social Services Law § 384-b (4) to terminate the mother’s parental rights on the ground of permanent neglect, the mother appeals from two orders of disposition (one as to each child) of the Family Court, Nassau County (Foskey, J.), both dated June 13, 2002, which, after a hearing, determined that she failed to comply with the terms and conditions of an order suspending judgment of the same court (Koenig, J.) dated October 5, 2001, terminated her parental rights, and awarded custody and guardianship of the children to the petitioner for the purpose of adoption.

Published on: July 17, 2015

Defendant Contends The Court Has Insufficient Evidence

by Stephen Bilkis

On July 1, 2005, after spending several hours in a bar in Manhattan, at which he consumed at least six beers, the defendant attended a friend’s party in Merrick in Nassau County. He arrived at the party, which consisted of a small gathering of his friends, between 11 P.M. and midnight. The house where the party was being held was approximately a five-minute drive from the Meadowbrook State Parkway.

At the party, the defendant was seen consuming several alcoholic drinks. Two of the defendant’s friends who were at the party described the defendant as intoxicated or “buzzed.” However, neither one observed the defendant stumbling or staggering while he was dancing, nor was he observed to be slurring his words.

Published on: July 16, 2015

Petitioners Request Final Judgment

by Stephen Bilkis

A motion (seq. No. 1) by the attorney for the petitioner for an order pursuant to Article 78 of the Civil Practice Law and Rules to compel the County Respondents to reduce petitioners’ total assessments on the April 2006 final roll by applying RPTL § 1805 assessment limitations and caps, and defining “assessment” as full property value-or-if a lower total assessment reduction results, to apply RPTL § 1805 assessment limitations to the parcel’s land assessment, and defining “assessment” as the full property value and “land assessment” as the full land value; to compel respondents, when applying RPTL § 1805 assessment limitations, to use an assessment as reduced by judicial review as the “previous year’s” assessment; and to compel Nassau County to pay refunds for any overpaid tax bills is determined as hereinafter set forth and adjourned suasponte to November 15, 2007. Cross-motion (seq. No. 2) by the attorney for the respondents for an order pursuant to CPLR § 3211(a)(5) and CPLR 3211(a) (7) dismissing petitioners’ Article 78 proceeding is denied.

The petitioners bring the within Article 78 proceeding for a judgment declaring that the alleged disparate treatment of petitioners’ class one property compared to class two and four properties with respect to lowering the level of assessment to avoid the application of RPTL § 1805 constitutes a violation of the equal protection clauses of the State and Federal Constitutions and petitioners are entitled to a refund from Nassau County for any overpaid tax bills.

Published on: July 15, 2015

Court Discusses Procedural History of Case

by Stephen Bilkis

A the outset, the Court would like to clarify some of the procedural history of this case which is related to the action Aurora v. Loan Services LLC v. BOM, et al., Index Number 22937/2009, a residential foreclosure proceeding.

Originally the undersigned under the mistaken impression that all papers had been fully submitted on the applications decided herein before these matters were reassigned to this part, issued decisions without the parties’ complete submissions. As a result, the Court vacated the decisions under motion sequence numbers 001 and 002 and, at a conference, counsel and the pro se defendants were informed of a new submission date and told to bring to the Court’s attention any additional arguments they deemed appropriate.

Published on: July 14, 2015

Patient Files Assistance Denial

by Stephen Bilkis

I. Matter of St. Francis hospital, as attorney-in-fact for JL.

For approximately two weeks in May, 1977, JL was a patient at St. Francis Hospital. He incurred a bill of $4,794.90 and applied for medical assistance. The Nassau County Department of Social Services, however, declared him ineligible and his application was denied. He appealed the denial and, after a fair hearing which he attended along with an attorney retained by the hospital, the State Department of Social Services affirmed the determination of the local agency.

Published on: July 13, 2015

Plaintiff Seeks Permanent Injunction

by Stephen Bilkis

For a number of years the defendant has operated a junk yard on property located on U.S. Route 20, Town of Nassau in Rensselaer County. Over the years there have been disagreements between the Town and the petitioner with regard to the petitioner’s operation of the junk yard and the Town’s efforts to regulate it. In August 2002 the Town commenced an action against the petitioner in an attempt to enforce Town of Nassau Local Law No. 1 [1989] with regard to the licensing and regulation of junk yards. That action was ultimately resolved when the parties entered into a stipulation which was so-ordered by the undersigned on September 9, 2002. In May 2003 the Town of Nassau commenced the instant action against the defendant.

The action was temporarily halted when the parties, on November 8, 2004. entered into a Stipulation of Settlement which was so-ordered by the Court. That agreement, arrived at after much litigation and negotiation, memorialized a number of commitments on defendant’s part regarding the manner in which he would operate and maintain the junk yard. By reason of defendant’s violations of the November 8, 2004 Stipulation of Settlement the plaintiff, in June 2006, commenced an enforcement proceeding seeking to permanently enjoin the operation of the junk yard and for liquidated damages. On June 8, 2007 the Court, after a hearing, issued a permanent injunction prohibiting the defendant from further operation of the junk yard and awarding plaintiff liquidated damages.

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.