New York Family Law Blog

Published on: March 16, 2015

Court Discusses Mother’s Liability for Counsel Fees

by Stephen Bilkis

On May 19, 1969, the defendant and his former wife entered into a separation agreement which provided for the support of the parties’ children. By Mexican decree dated May 31, 1969, the defendant and his former wife were divorced. Said decree incorporated the aforementioned separation agreement.

On January 21, 1977, defendant’s former wife commenced a proceeding in the Family Court, Nassau County, seeking an increase in child support payments on behalf of the defendant’s children. By order of the Family Court, an increase in support payments on behalf of the child was directed and denied relief to the child, suggesting that he would have to bring a proceeding on his own against his father since he had attained the age of 18 years.

The plaintiff was retained to represent him in connection with a petition for support under Article 4 of the Family Court Act. Thereafter, the Honorable Judge of the Family Court, Nassau County, rendered a decision granting the child an order of support in which he was awarded $30 per week in support. The aforesaid order denied plaintiff counsel fees in connection with the Family Court proceeding on the ground that the Court had no authority to grant said fees. The Court held “The petitioner is attending college on a full-time basis and is not an emancipated child and the mother is employed but her income is insufficient to meet the needs of herself, her daughter and son she is not in a financial position to provide support or any portion of the support required by her son. Plaintiff then commenced this action seeking counsel fees from the defendant based upon the fact that the legal services rendered to the son were necessaries for which the father was liable.

Published on: March 14, 2015

Petitioner Contends Several Flaws with Court Trial

by Stephen Bilkis

The plaintiff is an experienced police informant, met the defendant towards the end of December, 1997 when they were both incarcerated at the Nassau County Jail. At the time that they met, the police informant was charged with the felony of scheme to defraud in the first degree and misdemeanor criminal contempt charges. The two men became friends in the correctional institution, and in March of 1998 defendant confided to him that he had secreted monies from his mother’s estate. Defendant told him in substance that he had been held in contempt by the Surrogate for withholding estate monies for which he had not made a proper accounting to the court. Defendant also indicated that he was represented by counsel in connection with the civil contempt proceeding. Defendant stated that he considered his brothers to be partially responsible for his incarceration, that he hated both of his brothers, and that he wanted to have one of his brothers killed. Defendant also expressed a desire to harm the Surrogate. Finally, defendant spoke of a woman to whom he had entrusted $45,000 who had squandered the money. He was concerned about this woman because she was in possession of certain documents of his which would prove damaging if they were obtained by the IRS. The police informant told defendant that he knew someone who could “take care” of his brother for him.

On March 18, 1998 the police informant wrote a letter to Surrogate informing him of defendant’s intentions and offering to be of assistance to law enforcement. Surrogate forwarded the letter to the Nassau County District Attorney’s office. In response to defendant’s letter, ADA and the investigator of the Nassau County District Attorney’s Office arranged to meet with him on March 24. At the meeting Ms. Meister questioned Miller about the matters mentioned in his letter to Surrogate took notes, and told him she would get back to him shortly as to whether he would be accepted for cooperation with the District Attorney’s office. On June 3, defendant again met with the police informant and stated that he wanted to “rearrange” the hit and to have the police informant contact and act as “the middleman.” Defendant also indicated that he had a $2,000 check which was available as a down payment on the contract. An indictment was filed against defendant on June 11, 1998.

Published on: March 12, 2015

Court Discusses Entitled of a Judgment According to Law

by Stephen Bilkis

This is an action to recover damages for medical malpractice. The plaintiffs allege that the defendant a plastic surgeon, failed to timely diagnose plaintiff’s breast cancer. More specifically, plaintiffs allege in their Bill of Particulars that the defendants failed to appreciate the signs and symptoms of breast cancer, including the plaintiff’s complaint of a persistent, palpable left breast lump; failed to refer her for a sonogram and/or breast biopsy; failed to refer her to a breast surgeon; diagnosed her lump as due to an implant valve rather than a cancerous mass; gave the cancer an opportunity to spread and metastasize; and, failed to recommend a short interval follow up regarding her complaint of a breast lump. Plaintiffs claim that as the result of the delay in diagnosis, plaintiff suffered infiltrating ductal carcinoma, requiring left breast lumpectomy and axillary lymph node dissection, metastasis to three lymph nodes, chemotherapy and radiation. The plaintiffs maintain, inter alia, that defendant erroneously diagnosed plaintiff’s lump in her breast on November 11, 2004 as the valve of an implant, which, plaintiffs maintain, was actually a breast cancer lump that did not get diagnosed until nearly one year later in October, 2005.

On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.” Once the movant’s burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference.

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damages. In a medical malpractice action, a defendant doctor or hospital moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether it was negligent. More specifically, “on a motion by a defendant for summary judgment in a medical malpractice action, the defendant has the initial burden of establishing, prima facie, that he or she did not depart from good and accepted medical practice, or if there was such a departure, that it was not a proximate cause of the plaintiff’s injuries.”

Published on: March 10, 2015

Plaintiff Seeks Summary Judgment

by Stephen Bilkis

Plaintiff, County of Nassau, seeks summary judgment on a complaint against the defendant property owners, claiming that they owe a $500.00 civil penalty. The complaint proceeds on the premise that defendants were fined $500.00 by the Board of Assessors for failing to timely file an “Annual Survey of Income and Expense, pursuant to Nassau County Administrative Code Section 6-30.” Defendants’ answer denies liability, and avers that County officials acted illegally and unconstitutionally in imposing such a penalty.

Upon the papers submitted in support of plaintiff’s motion, the Court finds that plaintiff has failed to make a prima facie showing of entitlement to judgment as a matter of law. While the Court presumes, for purposes of this decision, that NCAC section 6-30 is constitutional, plaintiff has failed to plead and prove basic elements of its claim. These failures include lack of proof that defendants were owners of “income producing property” as defined in section 6-30(a), lack of proof that the Board of Assessors duly requested an income and expense statement from them, and lack of proof that the Board of Assessors imposed such a penalty upon them, specifically. In the absence of such proof, the Court must deny plaintiff’s motion for summary judgment.

Published on: March 8, 2015

Court Discusses “Operation Midway” Program

by Stephen Bilkis

On the face of it, these are merely two motions by the District Attorney for orders restoring two cases to the Trial Calendar and precluding them from admission to the Operation Midway Program. However, the broader thrust of these applications is the claim by the District Attorney that before the Administrative Judge of the County Court, in the exercise of his discretion, may consider a defendant for Operation Midway, the ‘consent’ of the District Attorney is required.

For a genuine understanding of what is at stake, a history of Operation Midway-type diversion programs is clearly in order. The following background emerges from a scholarly article by a Professor of Law at the University of Chicago and Co-director of the Center for Studies in Criminal Justice, as it appeared in Vol. 41, pp. 224–225, 238, Number 2, Winter 1974 of the University of Chicago Law Review. ‘In 1967 the Vera Institute of Justice established the Manhattan Court Employment Project to divert criminal defendants after their arraignment on felony or misdemeanor charges into a program of group therapy and employment counseling. If a defendant succeeds in a program and obtains a job, his pending criminal charges are dismissed. The goals of this innovative program are eloquently stated in the Vera Institute’s ten year report:

Published on: March 7, 2015

Issue in this Case Deals with Whether Plaintiff Can Pursue a Tax Certiorari Proceeding

by Stephen Bilkis

The petitioner, an owner of a parcel of real property improved by a one-family dwelling in the Village of Atlantic Beach, commenced this proceeding pursuant to Real Property Tax Law article 7 against the village, its Board of Assessors and its Board of Assessment Review seeking, inter alia, review of the assessment of his property for the tax year 1987/88, a declaratory judgment invalidating the respondents’ method of reassessing the value of real property only upon resale and an injunction restraining the respondents from levying and collecting taxes with respect to the petitioner’s property for the 1987/88 tax year based upon its assessment pursuant to this challenged methodology. The Supreme Court, Nassau County, denied the petitioner’s motion for summary judgment and this appeal ensued.

The petitioner purchased the subject parcel of real property in June 1986 for the sum of $166,000. At the time of the purchase, the total assessment placed against the property was $14,505. Following the transfer of title, the value of the property was reassessed in the sum of $36,520. The petitioner filed a protest application with the Board of Assessment Review of the village after the increased assessment appeared on the village’s 1987/88 tentative assessment roll. Specifically, the petitioner complained that the assessor’s method of increasing the assessments on only those properties which were the subject of transfer to new owners in the taxing jurisdiction was illegal and discriminatory. The final tax roll reflected the increased assessment on the petitioner’s property thereby implicitly confirming the challenged reassessment.

Published on: March 7, 2015

Plaintiffs Move for a Preliminary Injunction

by Stephen Bilkis

The plaintiff, a builder, purchased a certain piece of property at New York in February 1996. Prior to purchasing the property he ascertained that the property was located in a Residence C zone which requires a minimum lot area of 10,000 square feet. He intended to subdivide the 21,383 square foot lot into two parcels and construct at least one and possibly two new homes on the property. Upon closing on the purchase of the subject property on September 19, 1996, he applied for approval of the subdivision. Thereafter, he was informed by the Nassau County Planning Commission that approval to subdivide was not required.

On or about October 16, 1996, plaintiff filed an Application for Permit to Build or Install with the Department of Planning and Research, Building Division of the Town of Oyster Bay. He was informed that his permit application would not be reviewed because the Town Board was considering a zoning reclassification for the area that included his property. Plaintiff learned that, based upon a petition signed by area residents, the Town Board was considering 1) changing the zone from Residence C (10,000 square feet) to Residence B-1 (20,000+ square feet) and 2) adopting a moratorium on building permits for new home construction. A public hearing was scheduled for October 29, 1996.

Published on: March 6, 2015

Court Discusses Grand Jury Investigation Into the Sale of Children

by Stephen Bilkis

On December 7, 1976, a New York County Grand Jury, pursuant to its investigation into the sale of babies in violation of Social Services Law, Section 374(6), 1 issued two subpoenas duces tecum. One subpoena directed the Clerk of the Family Court of Suffolk County to appear before the Grand Jury and to produce adoption records from January 1, 1973 to November 1, 1976, wherein the parties to the adoption were represented by certain designated attorneys. The other subpoena, issued to the Clerk of the Nassau County Surrogate’s Court, requested production of similar material. The Clerk of the Suffolk County Family Court and the Senior Deputy County Attorney of Nassau County moved to vacate the subpoenas asserting that compliance would violate Domestic Relations Law § 114. That statute which provides for sealing of adoption records states, inter alia: “No person shall be allowed access to such sealed records and order and any index thereof except upon an order of a judge or surrogate of the court in which the order was made or of a justice of the Supreme Court. No order for disclosure or access and inspection shall be granted except on good cause shown and on due notice to the adoptive parents and to such additional persons as the court may direct.” In opposing the motions to quash, an assistant district attorney affirmed that “Information in the possession of my office shows that certain New York County attorneys maintain a nationwide network to locate and support unwed, pregnant young women. Thereafter these young women are induced to give up their babies to families that the lawyers have previously agreed to supply with infants.” A demonstration of specific instances of the illegal placement of children for adoption was set forth.

The initial and critical issue is whether the Grand Jury is a “person” within contemplation of Domestic Relations Law § 114. The purpose of Section 114 is to withhold adoption records from public inspection. In an adoption proceeding, the most intimate details of the lives of all parties thereto must be scrutinized in order for the court to determine whether the adoption will promote the best interests of the adoptive child. While records of judicial proceedings are generally available for public inspection, the unique nature of an adoption proceeding necessitates that such records be withheld from the public in order to protect the privacy of all parties involved. The statute, by providing that no person shall have access to these records without a showing of good cause and notice to the adoptive parents, is designed to prevent members of the public from unjustifiably delving into the privacy of those involved in adoptions.

Published on: March 3, 2015

Court Listens to Case Dealing with Article 16 of the CPLR

by Stephen Bilkis

The issue raised in this case involves the application of Article 16 of the CPLR and its effect on the instructions to be given to the jury concerning apportionment of fault between tortfeasors, one of whom was negligent and the other an intentional tortfeasor, not a party to the lawsuit.

Plaintiff and her husband had an ongoing marital dispute. He had in the recent past thrown a substance in plaintiff’s eyes, temporarily blinding her, stolen her car and threatened to kill her. On January 8, 1992, plaintiff obtained a Temporary Order of protection against her husband from the Family Court Queens County. The order was renewed by that court on January 27, 1992 and was in effect on the night of the incident which gave rise to the suit against the County, February 13, 1992. The Family Court had also issued a warrant for the husband’s arrest.

Published on: March 2, 2015

Court Enforces Judgment Regarding Maintenance

by Stephen Bilkis

This appeal presents an opportunity for this Court to clarify the procedure for enforcing a judgment against an award of maintenance. This procedure differs from those applicable to other types of collection efforts because it harmonizes the judgment creditor’s right to reach these funds with the public policy of protecting the recipients of such funds, though they be judgment debtors.

Counsel said that, the respondent and his former wife, were divorced pursuant to a judgment entered in the Supreme Court, Suffolk County. The judgment of divorce incorporated the terms of a duly-binding separation agreement which provided, inter alia, that respondent would make monthly maintenance payments to his wife. Upon respondent’s failure to make these payments, the Supreme Court, Suffolk County, entered an income execution for support directing his employer, the respondent Prospective Computer, to deduct the maintenance payments from his income and to pay them over to the wife on a monthly basis.