New York Family Law Blog

Published on: June 23, 2015

Court Discusses Domestic Violence Charges

by Stephen Bilkis

This case involves domestic violence and a motion to dismiss the indictment and an order transferring all the proceedings herein from the County Court to the Family Court of Nassau County was raised by the defendant. Defendant is charged with assault, second degree. The particular act involved herein arose as a result of an altercation between defendant and his wife during which the defendant is charged with stabbing his wife with a knife. The defendant urges this Court to transfer the entire proceedings to the Family Court inasmuch as the alleged assault arose during a family dispute.

They are presented with the problem of whether the Family Court, in the case of a felonious assault inflicted by one spouse upon another, is the sole and exclusive forum to the exclusion of the County Court. The act complained of for which the defendant stands indicted is clearly a crime against the State if proven, beyond a reasonable doubt, to the satisfaction of a jury (Penal Law, § 242).

Published on: June 22, 2015

Court Reviews Condemnation Proceeding

by Stephen Bilkis

This is a condemnation proceeding in which the Village of Garden City sought to acquire title in fee to certain property within the village for a parking field. The property to be acquired consists of 23 parcels all of which were heretofore zoned by the village for residential purposes. The evidence showed that a change in the zoning of property in the vicinity of the subject parcels had been under study since 1951 when the trustees of the village engaged a zoning expert to confer on a general revision of the ordinance. An advisory committee prepared and submitted to the trustees a draft of a proposed new zoning ordinance. This was the subject of a public hearing on January 25, 1953. A map delineating the proposed zone changes was dated and filed in the Nassau County Clerk’s office on March 20, 1953.

On June 25, 1953, a hearing was heard with respect to the proposed revision of the zoning ordinance before the Board of Trustees and the hearing was adjourned to July 2, 1953. On November 30, 1953, the report of the advisory committee was printed, and a memorandum was submitted by such committee to the Board of Trustees in which it was recommended that several of the parcels (D-1, D-2, and D-3, Washington Avenue frontage) be changed on the proposed map from C-O to R-6 Zone. The C-O Zone permitted the use of commercial offices on the property in that zone. In the R-6 Zone the property was restricted to one-family residences. On February 18, 1954, this recommendation was approved and adopted by the village trustees over the opposition of some of the property owners. The public hearing in relation to this condemnation proceeding was had on May 27, 1954.

Published on: May 8, 2015

Plaintiff Seeks a Divorce on the Grounds of Inhumane Treatment

by Stephen Bilkis

This action seeking a divorce on the ground of cruel and inhuman treatment, and ancillary relief, was commenced on or about June 10, 2003. By order dated December 23, 2003, both parties’ applications for temporary custody were denied and an injunction was issued prohibiting either party from taking the children out of the United States. The plaintiff (Wife) was granted omnibus pendente lite financial relief pursuant to an order dated February 24, 2004. The parties entered into a written “parenting-time” stipulation on February 8, 2005. The trial of the action commenced on February 1, 2005. On that date, an inquest was conducted on grounds and the plaintiff was granted a judgment of divorce on the ground of constructive abandonment. Entry of the judgment of divorce was stayed pending the determination, after trial, of ancillary issues.

At the conclusion of the trial, the Court reserved decision, pending receipt of post-trial memoranda and summations which were thereafter served and filed by both plaintiff’s counsel, defendant’s counsel and the law guardian.

Background

Published on: May 7, 2015

Petitioner Asserts Right to Counsel via Legal Aid

by Stephen Bilkis

The basis of this application, made by the Legal Aid Society of Nassau County and the attorney in charge of the Legal Aid Society of Nassau County, is the refusal by the Judge of the District Court of Nassau County, to permit the petitioner to continue to represent defendant on a pending charge of violating Section 240.20(5) and 240.20(6) of the Penal Law.

On June 24, 1971 defendant appeared pro se in the Arraignment Part of the District Court in response to the charge supra. At that time it is alleged that defendant indicated he could not afford an attorney and the matter was adjourned to June 20, 1971 and July 29, 1971 when defendant was arraigned. At that time defendant was represented by the Legal Aid Society to whom the case had been referred and who accepted defendant as a client.

Published on: May 6, 2015

Petition Brings Case Requesting Relief Pursuant to Real Property Laws

by Stephen Bilkis

This is a hybrid proceeding and action for damages by the petitioner as general partner of a Family Limited Partnership “the petitioner” for stated relief pursuant to Real Property Tax Law Article 7 and/or a writ of mandamus pursuant to CPLR Article 78 compelling the respondent Nassau County Board of Assessors and the Nassau County Department of Assessment “the respondents” to: (1) implement and abide by a decision rendered after a small claims assessment review hearing, dated November 27, 2006 which, inter alia, reduced the petitioner’s assessment for the 2006/2007 tax years and recognized the petitioner’s standing to maintain a SCAR proceeding within the meaning of Real Property Tax Law § 730; (2) further compelling the respondents to grant the petitioner a partial STAR exemption (RPTL § 425), and/or in effect, for relief setting aside the respondents’ January, 2007 denial of the petitioner’s application for a partial STAR exemption; and (3) for further relief awarding the petitioner punitive damages in the amount of $1 million is granted in part and denied in part as set forth below.

The petitioner as general partner of the Family Limited Partnership has commenced the within hybrid action and proceeding, styled as one pursuant to CPLR Article 78 and/ or article 7, et., seq., of the Real Property Tax Law (A. Pet., ¶ 18), for a writ of mandamus compelling the respondent Nassau County Board of Assessors and the Nassau County Department of Assessment [ collectively “the respondents”] to implement and abide by a decision rendered after a small claims assessment review hearing, dated November 11, 2006 which, inter alia, (i) recognized the petitioner-partnership’s standing and eligibility to maintain a SCAR proceeding within the meaning of Real Property Tax Law § 730; and (ii) then reduced the petitioner’s assessment for the 2006/2007 tax years.

Published on: May 5, 2015

Court Discusses Child’s Eligibility for State Assistance Programs

by Stephen Bilkis

Under the Federal public assistance program called Aid to Families with Dependent Children (AFDC), family income is considered in determining a child’s eligibility for relief. All of a natural father’s income is typically deemed available to his child, but the situation is more complicated where stepfathers are found. The Federal Regulations allow consideration of all of the stepfather’s income in estimating the child’s eligibility only if the applicable State law establishes a general obligation on all stepfathers to support their stepchildren, but not where the stepfather is liable to support only a stepchild likely to be a public charge.

In this decision we find, after reconciling a confusing statutory scheme, that in New York there is no general obligation of stepfathers to support their stepchildren, and that these support obligations only occur where the child is otherwise to become a public charge, or under special circumstances of agreement or estoppel. Accordingly, the stepfather’s entire income is not automatically figured to the stepchild, but as explained below, on familiar social services principles, only so much of it as is actually devoted to the child.

Published on: May 4, 2015

Court Discusses Outcome of Juvenile Hearing

by Stephen Bilkis

The respondent has moved to vacate this Court’s order dated February 21, 2007 which, upon his consent, extends his placement with the New York State Office of Children and Family Services (“OCFS”) as a juvenile delinquent for twelve months and directs that OCFS continue respondent’s present placement with L & W, an authorized agency within the meaning of Social Services Law §371 (10).

In support of the motion to vacate the Court’s order extending his placement with OCFS for L & W, respondent contends that: (i) the Family Court was without jurisdiction to extend placement; (ii) the proceedings were defective in that the Court did not have the authority to reconvert the proceeding from a Person in Need of Supervision (“PINS”) proceeding to a juvenile delinquency proceeding; and (iii) even assuming that the Court had jurisdiction to extend placement with OCFS that placement could not be extended beyond his 18th birthday without his consent.

Published on: May 3, 2015

Court Decides of License for Foster Care Should be Revoked

by Stephen Bilkis

An application pursuant to CPLR Article 78 by petitioners PJB and VJB to, inter alia, annul the determination of respondent SCO Family of Services (SCO) dated May 6, 2010, which concluded that petitioners’ residence located at 419 Pine Place, Uniondale, New York could no longer be maintained as a foster home and would be closed effective May 28, 2010, is determined as follows.

Motion by respondent SCO pursuant to CPLR 1001(a) and 1003 to dismiss the proceeding for failure to join an indispensable party is determined as follows.

Since in or about 2005, petitioners, who allege that they possess a certificate for the care of children at board with the Nassau County Department of Social Services, have operated a foster home for the care of children at 419 Pine Street, Uniondale, New York under the auspices of respondent SCO,1 a not-for-profit foster care agency authorized by the New York State Office of Children’s and Family Services to provide foster care services.2 According to petitioners, they have successfully housed several children since in or about 2005 when their relationship with the Salvation Army began.

Published on: May 2, 2015

Court Decides Case Under Election Law Sec.330

by Stephen Bilkis

In two proceedings under the Election Law (Section 330) for the judicial recanvass, review and recount of all the absentee and military ballots cast in the last general election for the office of District Court Judge of the County of Nassau, in the Third Assembly District, one proceeding having been brought by Frank X. Altimari, the candidate of the Republican Party, and the other proceeding having been brought by Julius R. Lippman, the candidate of the Democratic Party, the candidate Altimari appeals from the following judgment and order of the Supreme Court, Nassau County: (1) a judgment entered January 22, 1965 after a prior appeal and the hearing held pursuant to the Court of Appeals’ remittitur thereon, dated January 7 1965, 15 N.Y.2d 686, 256 N.Y.S.2d 133, 204 N.E.2d 332 [and amended February 11, 1965], which judgment declared that the two military ballots numbered 33-1 and 33-2 are valid and constitute two additional votes for candidate Lippman and that there is a tie vote for the said office, and directed that the Board of Canvassers amend its statement of canvass and the Board of Elections certify the results accordingly; and (2) an order entered January 20, 1965, which denied the candidate Altimari’s motion to reopen the proceedings so as to permit the introduction of newly discovered evidence with respect to the residence and qualification of the two voters who cast and mailed the said military ballots 33-1 and 33-2.

Judgment reversed on the law and in the exercise of discretion, without costs, and proceedings remitted to Special Term to take plenary proof with respect to the eligibility and qualifications to vote of the persons who cast and mailed to two military ballots numbered 33-1 and 33-2; an for a determination as to the validity of said ballots based upon such proof. No questions of fact were considered.

The order reversed on the law and in the exercise of discretion, without costs, and motion granted.

Published on: May 1, 2015

Court Decides Adoption Law Issue

by Stephen Bilkis

The court records establish that on May 6, 2003, the court adjudicated the Child V.(d.o.b. October 19, 2002, the “Child”) a neglected child under Article 10 of the Family Court Act and issued a final order of placement for one year, placing the Child in the custody of the Department of Social Services (“DSS”). On November 6, 2003, C. L. filed a paternity petition. The court granted the petition on April 7, 2004 and issued a written order of filiation on April 18, 2004. On October 15, 2005 C.L. filed a petition for visitation with the Child (the “Visitation Petition”). DSS filed a petition to terminate C.L.’s parental rights on November 21, 2005 (the “TPR Petition”). Ms. G, who had voluntarily placed the Child in the custody of DSS shortly after her birth, died in December of 2005. The foster parents, who wish to adopt the Child, moved to intervene in the adjudication of the Visitation Petition. The motion to intervene was denied by order of this court dated August 12, 2005.

The Department of Social Services moved this court for a hearing to determine whether C.L. is a person whose consent to the adoption of the Child is required under Domestic Relations Law §111 or whether C.L. is limited to receiving notice of the adoption proceedings pursuant to Social Services Law §384-c.