New York Family Law Blog

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.

Published on: March 1, 2015

Plaintiff Brings Child Custody Proceeding

by Stephen Bilkis

In a child protective proceeding pursuant to Family Court Act article 10, the Law Guardian appeals from so much of an order of the Family Court, Westchester County, entered January 5, 1989, as granted those branches of the father’s motion which were to compel the production of his daughter for examinations by a medical doctor and either a psychiatrist or psychologist of the movant’s choice.

This child protective proceeding is brought by the Westchester County Department of Social Services pursuant to Family Court Act article 10, alleging that the daughter had been sexually abused by her father. Thereafter, the father moved, inter alia, for a physical examination and a psychiatric or psychological evaluation of the daughter, to be conducted by licensed professionals of his selection. The Family Court granted this relief.

Published on: February 28, 2015

Court Decides Neglect Proceeding

by Stephen Bilkis

In this neglect proceeding commenced by the Nassau County Department of Social Services alleging, in essence, that a child now 15 1/2 years old had been sexually abused by the respondent, her adoptive father, for a period of approximately four (4) years prior to April 10, 1989, respondent moves for an order dismissing the petition and an award of counsel fees. A brief summary of the events leading to this motion is appropriate.

On August 30, 1989, respondent entered a general denial and the matter was set down for trial on October 30, 1989. In companion matters the Court issued temporary orders of protection removing respondent from the home and providing for supervised visitation. The amended petition in these companion matters alleges inter alia respondent’s tendency toward sadistic sexual practice as well as bestiality.

Published on: February 23, 2015

ASC files Suit Against Parents of Four for Neglect

by Stephen Bilkis

On February 23, 2007, the Commissioner of the New York City Administration for Children’s Services (the Commissioner or ACS) filed related petitions under article 10 of the Family Court Act against respondents AN. and RB with respect to the four children who resided with them: five-month old J., five-year old JS N., five-year old D B., and two-year old DW. AN and RB are J’s parents, while AN is JS’s father and RB is the mother of D and DW. ACS had carried out an emergency removal pursuant to Family Court Act § 1024 the previous day, after social workers at Bellevue Hospital Center reported suspected child abuse to the Statewide Central Register of Child Abuse and Maltreatment.

The petitions in these child protective proceedings alleged that J, whom AN brought to Bellevue on the evening of February 21, 2007 – hours after he claimed that the baby screamed in a way unlike ever before – had been admitted with a “shifted and fractured collar-bone with swelling”; and that, upon further examination, hospital personnel discovered four partially healed fractured ribs. The petitions also asserted that AN “inflicted excessive corporal punishment” on JS by hitting him with a “black wire,” thereby causing “excessive welts to his body”; and that RB failed to intervene to protect him. The Commissioner sought orders determining, upon clear and convincing evidence, that these four children were severely or repeatedly abused, and, upon a preponderance of the evidence, that they were victims of abuse and neglect.

At the conclusion of the hearing, Family Court determined that AN and RB abused J “in that, while in the care of AN and RB, the child sustained fractures of the clavicle and of the left 4-7 ribs and AN and RB have not offered any credible explanation for any of these injuries and that they neglected and derivatively abused JS, and derivatively abused and neglected DW and D.

Published on: February 17, 2015

Court Decides Whether to Terminate Parental Rights

by Stephen Bilkis

In three related proceedings pursuant to Social Services Law § 384–b and Family Court Act article 6 to terminate parental rights on the ground of permanent neglect, the mother appeals from three orders of disposition of the Family Court, Nassau County (Dane, J.)(one as to each child), all dated December 22, 2010, which, upon a fact-finding order of the same court dated January 8, 2010, made after a fact-finding hearing, finding that she permanently neglected the subject children, terminated her parental rights and transferred child custody and guardianship of the subject children to the Commissioner of the Nassau County Department of Social Services for the purpose of adoption. The appeal from the order of disposition brings up for review the fact-finding order.

On the contrary to the mother’s contention, the Family Court properly found that she permanently neglected the subject children Shanea R. and Kyshawn F. The petitioner established by clear and convincing evidence that it made diligent efforts to assist the mother in maintaining contact with the children and planning for the children’s future ( see [95 A.D.3d 885]Matter of Star Leslie W., 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824;Matter of Sheila G., 61 N.Y.2d 368, 373, 474 N.Y.S.2d 421, 462 N.E.2d 1139). These efforts included repeated referrals of the mother to drug treatment programs, the monitoring of her progress in these programs, repeated advice to the mother that she must attend and complete the drug treatment programs, and the scheduling of regular visits between her and the children (see Matter of Jada Ta–Toneyia L., 66 A.D.3d 901, 902, 886 N.Y.S.2d 640;Matter of Deajah Shabri T., 44 A.D.3d 1060 1061, 844 N.Y.S.2d 410;Matter of Distiny Angelina N., 18 A.D.3d 755, 756, 795 N.Y.S.2d 685).

Published on: February 10, 2015

Petitioner Challenges Three Rulings from Dept. of Social Services

by Stephen Bilkis

In this Article 78 family proceeding, Petitioners challenge three determinations of the Nassau County Department of Social Services.

On the first issue, the emergency assistance was denied to replace clothing of the petitioners’ four children, which was destroyed by parasitic pinworms.

Published on: February 8, 2015

Plaintiff Brings Motion to Dismiss Family Case

by Stephen Bilkis

In this family case, the Defendants bring this motion seeking to reargue and renew their prior motion to dismiss, pursuant to CPLR §§ 3211 and 327, which resulted in an order of this court denying the motion. The Plaintiff opposes the present motion. Before addressing the substance of the Defendants’ present motion it is worthwhile to review the nature of the underlying action, the Defendants’ prior motion and the claims made therein.

This is an action to recover monies allegedly due and owing pursuant to an equipment rental agreement (the “Agreement”) entered into by the defendant corporation and the Plaintiff’s assignor, guaranteed by the Defendant, the President of the corporation for the lease of telecommunication equipment and services.