New York Family Law Blog

Published on: April 2, 2015

Court Considers Summary Judgment Where There is No Issue of Material Fact

by Stephen Bilkis

This motion arises out of an underlying personal injury action, filed in this Court in June 2009, wherein the plaintiff alleged violations under Labor Law §§240 and 241. Plaintiff fell from a ladder while performing construction work on the improved real property owned by defendants. Plaintiff is alleging that the statutory residential exemption does not apply as the real property is in actuality, the site of plaintiff’s business entity.

On September, 2008, the owner of the property entered into a work agreement which provided that his company was to “repair and painting” the “residence”, and the contract was executed by as owner of the subject premises. Such work included the repair of shingles, siding, and painting the house, including the windows and window trimming. According to the defendants, the premises is and was at the time of the underlying action, a private one-family residence and the home of multi generations of the family. The real property included a main house and a renovated cottage. The work was to be performed on the main house.

Published on: April 1, 2015

Petitioner Seeks to Modify Visitation

by Stephen Bilkis

The petitioner/mother, and the respondent/father, were divorced by judgment of divorce, dated February 14, 2000 and entered by the Nassau County Clerk on February 15, 2000. The judgment of divorce granted the parties joint legal custody of their children. Physical custody was awarded to the petitioner, subject to the respondent’s right to visitation as set forth in their separation agreement, dated August 31, 1998, which was incorporated (but did not merge) with the judgment of divorce. The separation agreement provided, among other things, that the father would have mid-week overnight visitation with the children.

On April 17, 2003, the petitioner filed an application with this Court for modification of the visitation provisions of the judgment of divorce. The petition requested that the respondent’s mid-week visitation be eliminated, as it was “not practical” because her new husband, had secured employment in the Albany, New York area. The petition stated that she and her four children (the two Jones children and the two children of her current marriage) would relocate to the Albany area to join her husband on or about June 30, 2003, at the end of the school year.

Published on: March 31, 2015

Respondent Seeks to Dismiss Proceedings

by Stephen Bilkis

A New York Family Lawyer said that, by motion dated January 5, 2009, respondent seeks to dismiss the instant proceeding, alleging that she is not a licensee and therefore cannot be evicted in a summary proceeding. Petitioner opposes the motion and, pursuant to CPLR 3212 (b), requests summary judgment and a judgment of possession.

A Nassau Divorce Lawyer said that, according to the affidavits of the parties, respondent, a 42 year-old attorney, is petitioner’s daughter-in-law and was married to petitioner’s son in 2001. Soon thereafter, the couple moved into the subject premises located at 345 Harbor Drive, Oyster Bay, New York. The premises are described as a “beach cottage” located on a parcel of land solely owned by petitioner, whose own residence is on the same parcel of land.

Respondent and her husband resided together at the subject premises with the permission of petitioner until March 2007, when respondent’s husband moved out. Respondent’s husband then filed a divorce proceeding, which is currently pending in Suffolk County Supreme Court. Petitioner has served respondent with a 10-day notice to quit pursuant to RPAPL 713 and commenced the instant summary proceeding to evict the respondent from the subject premises, contending that respondent is a licensee.

Published on: March 30, 2015

Court Decides How Domicile of Claimant Effects Case

by Stephen Bilkis

In this probate proceeding objections were filed and a jury demanded by respondents. A motion is now made by them to dismiss the petition before any trial on the merits upon the ground that the decedent was not a (domiciliary) resident of Nassau County at her death on February 14, 1977 as specified in SCPA 206, subd. 1. They request that the proceeding be forwarded to New York County as the “proper county of residence” and also for the convenience of witnesses.

In support of the motion there have been filed affidavits of respondents’ attorney and of respondent, along with copies of affidavits and exhibits which had been previously submitted to this court in connection with an application to revoke letters testamentary which had been issued to the proponent here on the estate of this decedent’s husband, who died on May 26, 1975. In opposition to the motion various other facts are asserted to sustain proponent’s claim that Nassau County was the domiciliary residence of decedent and both attorneys have submitted memoranda in support of their respective positions. The court has examined them and will discuss below the various facts alleged by both sides.

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.