New York Family Law Blog

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”.

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.