New York Family Law Blog

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.

Published on: July 3, 2015

Respondent Claims that Plaintiff Failed to State a Cause of Action

by Stephen Bilkis

The matter before the court is a Motion filed by counsel for the Respondent for an Order pursuant to the provisions of Sections 100.15, 100.20, 100.30 and 100.40 of the Criminal Procedure Law, dismissing the petition for failure to state a cause of action. The original petition herein was filed by a Nassau County Detective assigned to the Juvenile Aid Bureau of the Nassau County Police Department.

The Respondent contends that since the petition was not verified in the manner prescribed by Section 100.30 of the Criminal Procedure Law and since the statement of the complainant which supports the petition was not verified as required by Section 100.20 of the Criminal Procedure Law, the petition must be dismissed.

Published on: July 2, 2015

Defendant Seeks TRO to Prevent Plaintiff From Filing Retirement Documents

by Stephen Bilkis

This is a family case wherein, the plaintiff, by way of Order to Show Cause, obtained a Temporary Restraining Order, (TRO), restraining and enjoining the defendants and their officers, agents, servants and employees, from filing or causing to be filed, any retirement papers for the plaintiff, and from acting with regard to removing any of the powers of authorization afforded to the plaintiff.

The Second Department, by way of Decision and Order on Motion, dated December 31, 2009, granted the defendants leave to appeal those provisions of the order of the Honorable Justice, Supreme Court, Nassau County, dated December 23, 2009, which prohibited the defendants from requiring the plaintiff to retire as of December 31, 2009, whereby the Second Department stayed such provisions pending the hearing and determination of the appeal, or pending determination by the Supreme Court, Nassau County, the Order to Show Cause returnable on January 11, 2010, whichever comes first.

Published on: July 1, 2015

Husband Seeks Equitable Distribution in Divorce Case

by Stephen Bilkis

In this family case, the husband wishes to preserve his priority in time, perhaps for commencement date purposes under equitable distribution and the cause of action he has asserted, and that right should not be denied. Similarly, the wife wishes to proceed on her cause of action, either in the event the husband fails on his or, perhaps, under the concept of a dual divorce. Moreover, she may seek to pursue pendente lite relief under the new statutory guidelines which will only be available to her in Action # 2, commenced after October 12, 2010. A party is not obligated to counter-claim in Action #1 just because the husband has previously commenced such an action against her. Instead, the wife may assert an independent cause of action in a separate suit (Action # 2) that will not be subject to dismissal on the ground that “there is another action pending between the same parties for the same cause of action” (CPLR § 3211[a][4] ), as long as the relief requested is different from that requested in Action # 1.

In Action # 2, the wife now moves to partake in the benefits of the new matrimonial legislation and seeks, inter alia, pendente lite maintenance and counsel fees as well as partial summary judgment on grounds (DRL § 170[7] ) under the new law. She also seeks pendente lite child support, educational expenses and related relief, as well as payment of all the carrying charges for the parties home, her automobile. medical, dental and life insurance and unreimbursed medical expenses. The court notes that the instant motions were fully submitted on the date of the Preliminary Conference, January 12, 2011, at which time the husband consented to pay the carrying charges on the marital residence pendente lite, including utilities, real estate taxes and homeowner’s insurance and to maintain health insurance for the entire family and pay uncovered health expenses, provided the wife uses in network providers.

Published on: June 30, 2015

Court Discusses Case Filed by Nassau County Social Services

by Stephen Bilkis

This is a Motion by Respondent for an Order pursuant to Section 3212 of the C.P.L.R. dismissing a proceeding filed by the Nassau County Department of Social Services with prejudice on the grounds that Respondent has an absolute defense to the proceeding due to a discharge in bankruptcy of the debt allegedly owed to Nassau County Department of Social Services, and is defending against the violation petition filed by the Department interposing a defense that the arrears of $1,505.00 were discharged in bankruptcy.

Respondent filed a petition for bankruptcy in the United States District Court for the Eastern District on August 16, 1979. The debt due the Department of Social Services was included in the bankruptcy petition. The Department of Social Services received notification of the proceeding.

Published on: June 28, 2015

Plaintiff seeks a Writ of Mandamus

by Stephen Bilkis

In this proceeding pursuant to Article 78 of the CPLR, the petitioner seeks a judgment, in the nature of a writ of mandamus, requiring the respondent County Treasurer to permit her to redeem two contiguous parcels of real property which were the subjects of tax lien sales and, upon petitioner’s payment of the amount of said liens, together with any interest and penalties due thereon, directing the respondent County Clerk to cancel of record the deeds previously given by the respondent County Treasurer to the purchasers of the tax liens.

The petition is grounded upon the claim that the petitioner, as owner of the property, was not given actual notice of the sale of the tax liens and that the respondents failed to comply with the notice requirements of the Nassau County Administrative Code.