New York Family Law Blog

Published on: March 28, 2015

Plaintiff Seeks Reimbursement for Cost of Tuition for Foster Child

by Stephen Bilkis

Plaintiff seeks reimbursement for the cost of tuition for a foster child, pursuant to Education Law section 3202(5)(a) which provides for the distribution of the cost of educating indigent children among the school districts of this state. This child’s mother, was confined to the Bedford Hills Correctional Facility at Bedford Hills, New York when the child was born on June 27, 1965. The mother, immediately prior to her incarceration, resided for several months in 1964 within the Amityville Central School District. She remained in prison until January 5, 1970 and has thereafter not returned to live in Amityville.

The Nassau County Department of Social Services assumed responsibility for the support and maintenance of Cheryl on February 16, 1966, and ever since, has had her in their charge. It appears that the child was placed in foster care in Westbury at the age of eight months and has received her education within the schools of the plaintiff Westbury School District.

Published on: March 27, 2015

Court Discusses Reasonable Doubt Regarding Evidence

by Stephen Bilkis

The defendant, Ms. G, a landlord and owner, is charged with various violations of the Incorporated Village of Westbury Building Code at 463 Franklin Street, Westbury, New York on January 31, 2007.

The Facts

Published on: March 25, 2015

Court Decides Custody in Light of Sexual Abuse Allegations

by Stephen Bilkis

Following an 11-day hearing, Family Court, by order entered September 15, 2005, awarded respondent wife sole legal and physical custody of the parties’ minor child, D (born in 2000), and established a visitation schedule for petitioner. Family Court did so with great hesitation, noting respondent’s marked weaknesses as a parent, including her insistence that petitioner sexually abused the child—despite the lack of sufficient credible evidence to sustain that allegation—and her noted lack of effort to encourage any sort of a relationship between the child and petitioner.

Shortly thereafter, respondent failed to produce the child for a scheduled visitation with petitioner in Nassau County, prompting Family Court to order the parties to appear on September 28, 2005 to address this issue. At that time, it came to light that respondent recently had informed the child’s school psychologist that petitioner had sexually abused the child; the school psychologist, in turn, filed a report with the Nassau County Department of Social Services. Respondent conceded that she did not advise the school psychologist of the prior proceedings in Family Court or that the allegations of abuse had been thoroughly explored and laid to rest in the course thereof. Family Court then directed that neither party discuss the prior allegations of sexual abuse with anyone without the express permission of the court.

Published on: March 24, 2015

Court Discusses Application of Mental Hygiene Law

by Stephen Bilkis

In 1971, a mildly retarded individual was admitted to the Wassaic Developmental Center, a State institution for the mentally retarded. At the time of her admission, she was 16 years of age, and had a known history of epileptic seizures which rendered her immobile for minutes at a time. Her medication, Dilantin, kept her epileptic condition under control although she did continue to experience some seizures following her admission. In 1974, the child was placed in a family-care home. At the time of the placement, 6the foster mother was informed by social workers that the child was an epileptic, but was never given any records regarding her condition. The foster mother was told that the child was to take her medication three times a day. Between the years 1974 and 1978, the child suffered periodic seizures while under the foster parents’ supervision.

The foster’s residence had been certified by the State as a family-care home following an inspection in or about 1975. A recertification was made in 1977. During the certification inspections, as well as intermittent other inspections, no hazardous conditions were found to exist in the home. The second-floor bathroom, where the underlying incident occurred, was outfitted with a bathtub, commode, sink and closet. The bathtub, which was enclosed by sliding glass doors, was equipped with a showerhead and faucet with one control for the hot and cold water. The door to the bathroom was a solid, standard, wood type with a butterfly lock below the handle on the inside of the bathroom. There was no turning device for the lock on the outside of the door. The foster’s were never directed to remove or change the lock on the bathroom door.

Published on: March 23, 2015

Court Decides Complicated Neglect Case

by Stephen Bilkis

The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition dated August 23, 2007, containing nine charges of professional misconduct. After a preliminary conference the Special Referee sustained charges one through six but found that charges seven through nine had not been established by a fair preponderance of the credible evidence. The Grievance Committee now moves to confirm the Special Referee’s report. The respondent cross-moves to confirm the Special Referee’s report with respect to charges seven, eight, and nine and to disaffirm with respect to charges two, four, five, and six.

A charge one alleges that the respondent allowed his professional judgment on behalf of his clients to be affected by his own financial, business, property, or personal interests in that during the course of his representation of two clients (hereinafter the clients) in a child neglect matter pending in Family Court, he had the clients convey title to their home to him in order to prevent a foreclosure sale of the property and, thereafter, sought to evict them while continuing to represent them in the Family Court matter, in violation of Code of Professional Responsibility.

Published on: March 22, 2015

Court Discusses the Meaning of “Household” Under the Family Court Act

by Stephen Bilkis

The defendant was charged by an information sworn to by the complainant with a violation of Section 242, subd. 3 of the Penal Law, in other words, with a second degree assault. Upon arraignment, he was represented by counsel, namely the office of the Public Defender of the County of Nassau. His lawyer asked that the matter be transferred to the Family Court of this County to be there treated as a family offense.

In support of his application, counsel states that the complainant, and the defendant, has lived together at 36 Carney Street, Glen Cove, New York, for a period of time, that they have their shared the same apartment and that in general, they have held themselves out to be man and wife. Defendant’s counsel further informed the Court that the complainant and the defendant have never been married to each other by either a ceremonial service or a civil one, nor has a marriage license ever been issued to them.

None the less, it is asserted that the circumstances under which the complainant and defendant live with each other are such as to constitute them a household within the meaning of Section 812 of the Family Court Act. Since the institution of the Family Court Act in 1962, a number of cases have been heard in this County construing the ambit of Section 812 in situations approximately similar to the one outlined above.

Published on: March 21, 2015

Family Court Deals with Firearm Issue

by Stephen Bilkis

At the hearing, the Deputy Sheriff testified on behalf of the Sheriff’s Department. He testified that the Sheriff’s Department’s general rule in returning firearms is that the return is made when an order from the court is provided to the Sheriff’s Department. According to him, in the past six years that he worked with the department, there were only two orders given by the Supreme Court for the return of firearms, the remainder were considered by the Family Court.

The former wife of the petitioner chose not to appear, although the Law Guardian had spoken to her, and she indicated that she had no objection to the return of the firearms provided they were safely stored. As previously stated, she had also consented to the vacating of the Order of Protection. At the conclusion of the hearing, the court reserved decision pending a background check of the petitioner to ensure that there was no activity or history that would preclude the return of the firearms.

Published on: March 20, 2015

Nonparty Witness Moves for an Order to Quash Subpoena Duces Tecum

by Stephen Bilkis

The nonparty witness moves for an order pursuant to CPLR 2304 quashing the subpoena duces tecum served upon him, and for a protective order pursuant to CPLR 3103 blocking the taking of his deposition in this action, and further blocking the disclosure of investigative reports, notes, and materials, and granting a stay of discovery. The plaintiffs cross move for an order pursuant to CPLR 2308 (b) holding the nonparty witness in contempt of court for disobeying the subpoena duces tecum, for an order requiring him to appear for a deposition; for an order requiring him to pay the court reporter costs associated with the first deposition; for an order pursuant to 22 NYCRR § 130-1.1 for sanctions against him and his counsel; and for an order denying his amended motion dated December 22, 2008. Each opposes the motion of the other. This Court has carefully reviewed and considered all of the papers submitted with respect to the motion and cross motion.

The Deputy County Attorney for Nassau County, the attorney for the defendants in an action pending in the United States District Court, Eastern District of New York under Docket number CV-07-2032 (JFB) (WDW) states, in an affirmation dated December 19, 2008, the underlying matter involves a former Nassau County Corrections Officer. The Deputy County Attorney states an investigation into the plaintiffs Workers Compensation claim was assigned to the nonparty witness, who is affiliated with the Nassau County Attorney’s Office, and it expanded to involve allegations regarding the plaintiffs General Municipal Law § 207 (c) and job arbitration proceedings. The Deputy County Attorney points out the nonparty witness was in contact with a named defendant in the instant action in connection with that investigation, but not in contact with the codefendants here. The Deputy County Attorney notes that investigation is open and ongoing, and the nonparty witness is scheduled to testify soon at the plaintiffs job arbitration proceeding, and the plaintiff either has not yet testified or has not completed his testimony in that proceeding. The Deputy County Attorney remarks there is no provision for depositions to be held in arbitration proceedings, and pursuant to CPLR § 2404 and 22 NYCRR 202.7 (b), this affirmant contacted plaintiffs’ counsel, who issued the subpoena duces tecum, and requested it be withdrawn. The Deputy County Attorney states the grounds for the request were an improper attempt to obtain disclosure of the nonparty witness’ anticipated testimony and investigative materials for use in the arbitration proceeding, and the deposition would be duplicative since the nonparty witness would soon testify at that arbitration proceeding. The Deputy County Attorney explains the investigation by the nonparty witness is incomplete, disclosure now would hamper further investigation, investigation is attorney work product because it was initiated by the Nassau County Attorney’s Office in connection with the plaintiffs’ claims, and the Nassau County Attorney’s Office offered to produce the nonparty witness here following completion of his testimony in the arbitration. The Deputy County Attorney adds a copy of the nonparty witness’ testimony at the arbitration proceeding could be furnished to plaintiffs’ counsel, and obviate additional deposition testimony. The Deputy County Attorney submits the plaintiff would be placed at an unfair advantage in the Workers Compensation and arbitration proceedings if he is permitted to ascertain details of the nonparty witness’ ongoing investigation. The Deputy County Attorney avers the investigation is privileged, and its release now could compromise the probe and prejudice Nassau County while the plaintiffs would suffer no prejudice by waiting until the nonparty witness testifies at the arbitration proceeding.

Published on: March 19, 2015

Defendants Seek Summary Judgment Pursuant to CPLR 3212

by Stephen Bilkis

In this family case, the plaintiff in this action seeks to recover damages for medical malpractice and lack of informed consent. She underwent gastric bypass surgery at a hospital by the defendant doctor on July 23, 2008 and she was discharged on July 28, 2008. On the morning of July 29, 2008, she was transported to another hospital via ambulance because she was suffering from severe abdominal pain. She was treated there for eight hours. While there, she was examined and tests were conducted including a CT scan of her abdomen.

A bariatric surgeon conducted a surgical consult via telephone. His primary differential diagnosis included post-operative pain along with anxiety of recent surgery, some form of intra-abdominal process, infection or inflammation. The possibility of an anastomotic leak was also considered.

Published on: March 18, 2015

Court Discusses Petition for Tax Exemption

by Stephen Bilkis

The Plaintiff, claims that it is entitled to a real property tax exemption pursuant to Real Property Tax Law [“R.P.T.L.”] §§ 420(a),(b)1 and 4622 for the years 2004 and 2005 for its property located at 32 College Road, Monsey, New York within the Town of Ramapo. The trial of this matter took place on February 15, 2006 during which witnesses testified on behalf of the Congregation and the Defendants. After a careful review the trial record and exhibits and the excellent post trial memoranda of law including findings of fact and conclusions of law submitted by the parties the Court is now prepared to render its Decision.

The Congregation was organized as a religious corporation, the Certificate of Incorporation5 of which provides” SECOND: The purposes for which this corporation is formed are. To conduct and maintain a House of Worship in accordance with orthodox Jewish custom and traditions to promote the religious, intellectual, moral and social welfare among its members and their families, to promote and increase interest in the study of the Torah, by maintaining classes for the teaching of the customs, traditions and mode of worship of the orthodox Jewish faith. FIFTH: The principal place of worship of the corporation shall be located at 32 College Road, Monsey, New York”.