Defendant Claims Lack of Jurisdiction in Court Proceeding

September 20, 2015,

A New York Family Lawyer said that, the defendant moves, pursuant to CPL 210.20(1)(e) and (h), to dismiss the fourth count of the captioned indictment. In support, he presses two grounds. First, the defendant contends that this court lacks jurisdiction over that charge of Criminal Contempt in the Second Degree. Next, he maintains that trial of this count would constitute double jeopardy in any event.

The court has extensively examined all relevant federal and state constitutional provisions, sections of the Penal Law, Judiciary Law, Criminal Procedure Law and Family Court Act, and case law. Upon that review, it is not convinced that dismissal is warranted on either ground urged by the defense. However, for the reasons set forth below, count four of the indictment is dismissed in the interest of justice. CPL 210.20(1)(i).

A New York Divorce Lawyer said the records of this court and certain Family Court documents recently produced via a so-ordered subpoena reflect that on September 1, 1986, the police responded to a domestic disturbance during which the defendant allegedly harassed his estranged wife and, in doing so, also violated a Family Court Order of Protection. The defendant then allegedly assaulted two police officers and resisted arrest. On September 3, 1986, Mrs. McGraw filed a Violation of Order of Protection petition in the Family Court, based upon the defendant's alleged harassment of her. That petition was settled--on the same date and the parties' consent, absent any admission, retraction or affirmative finding of those allegations--with the continuation of the Order of Protection as modified.

Meanwhile, the People filed charges against the defendant for the police assaults and resisting arrest. Approximately seven months later, the grand jury voted to accuse the defendant of those crimes, as alleged in the first three counts of the indictment. It also chose to indict him for criminal contempt, as charged in the fourth count.

A Nassau County Lawyer said that under Penal Law Section 215.50(3), a person is guilty of Criminal Contempt in the Second Degree when he intentionally disobeys a court mandate. Clearly, the defendant's alleged violation of the Family Court Order of Protection could, ordinarily, be prosecuted as such in this court. The issue presented here is whether the same is precluded by the prior Family Court proceedings.

A Staten Island Lawyer said that at the outset, notice must be taken of pertinent statutory language. In essence, Section 530.11(1)-(2) of the Criminal Procedure Law mirrors Family Court Act Section 812(1)-(2). Subdivision (1) vests in the family and criminal courts "concurrent jurisdiction over any proceeding concerning acts which would constitute" designated offenses between persons of specified relations. Subdivision (2)(a)-(e) requires that those bringing "family offense proceedings" be informed that: this concurrent jurisdiction "with respect to family offenses" exists; "a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end family disruption and obtain protection;" "a proceeding in the criminal courts is for the purpose of prosecution of the offender;" "a proceeding or action subject to the provisions of this section is initiated at the time of the filing of an accusatory instrument or family court petition;" and, that the final choice of forum after the filing of either bars "any subsequent proceeding in an alternative court based on the same offense." Section 530.11(4) mandates that the criminal court clerk "notify the family court in which a family offense proceeding is pending that an accusatory instrument has been filed alleging the same act alleged in the family court petition."

Family Court Act Section 821(1) prescribes the content of a family offense petition, including allegations of an act described in terms of the offenses delineated in Section 812(1) and that there has been no final resort to a criminal court "with respect to the same act." Section 100.07 of the Criminal Procedure Law substantively parrots Family Court Act Section 821(3). Both prohibit the commencement of a criminal action "charging a defendant with an offense within the concurrent jurisdiction of the family court, as enumerated in section eight hundred twelve of the family court act" if the "criminal transaction giving rise to the criminal court charge is or was the subject of a proceeding commenced under article eight of the family court act" and said election has become final.

Under Family Court Act Sections 841 and 842, that court is empowered to issue an Order of Protection in a family offense proceeding. Pursuant to Sections 846 and 846-a, a petition may be brought before the Family Court alleging a violation of that order and a finding of such wilful disobedience can result in, among other things, modification of the existing order and a six-month jail term. Section 847 provides that a "family offense as defined in section eight hundred twelve which occurs subsequent to the issuance of an order of protection shall be deemed a new offense for which the petitioner may elect to file a violation of order of protection petition, or a new petition or initiate a proceeding in a criminal court." Finally, pursuant to Penal Law Section 215.54, "for criminal contempt under subdivision A of section seven hundred fifty of the judiciary law shall not bar a prosecution for the crime of criminal contempt under section 215.50 based upon the same conduct but, upon conviction thereunder, the court, in sentencing the defendant shall take the previous punishment into consideration."

Certainly, the inclusion of terms such as "concurrent jurisdiction over any proceeding concerning acts which would constitute," "same act," and "criminal transaction giving rise to the criminal court charge is or was the subject of a proceeding commenced under article eight of the family court act" in the sections quoted above, invites a broad interpretation divesting this court of jurisdiction over the subject count. However, the particular enumeration of the offenses addressed, to which repeated reference is made, and phrases such as "family offense proceedings," "family offenses," and "any subsequent proceeding based on the same offense", are a part of those same laws. And, construed together, they present a statutory scheme predicated upon specifically delineated "family offenses."

Harassment, as between the defendant and his wife, is one of those offenses. Undoubtedly then, her final resort to the Family Court rendered such a charge untenable in this court and, in fact, none has been filed. Criminal Contempt in the Second Degree, on the other hand, is not a designated family offense and, therefore, the election provisions are inapplicable to that crime. Indeed, Mrs. McGraw "did not elect to commence a criminal action and not bringing the instant charges, the People of the State of New York are," and they "did not make any election of remedies;" they "chose to charge this defendant with a violation of Penal Law § 215.50." Hence, this court's jurisdiction over that count remains intact.

The defendant's double jeopardy claim is equally unpersuasive. Suffice it to say that the Family Court proceedings neither amounted to a prosecution nor placed him in jeopardy for the same act or offense at bar. They were civil in nature and did not result in a hearing, adjudication or penalty on the allegations in the petition. See, in addition to the statutes cited herein: Criminal Procedure Law Sections 1.20(1), 40.10, 40.20 and 40.30.

Nonetheless, the foregoing circumstances compel dismissal of the contested count in the furtherance of justice. Due consideration has been given to the factors set out in Criminal Procedure Law Section 210.40(1) as applied to the facts of this case. Most significant in that analysis is that when the defendant was returned to the court whose order he allegedly violated, it effectively resolved the matter on the parties' consent and opted to forego holding him in contempt. Accordingly, count four of the indictment is dismissed. CPL 210.20(1)(i), 210.40(1) and (3).

If you are facing criminal indictment in a Family Court, you will need the legal representation of a Nassau Order of Protection Attorney and Nassau Family Attorney at Stephen Bilkis and Associates.

Petitioner Moves for Order Granting Judgment

September 19, 2015,

A New York Family Lawyer said that, in this proceeding, petitioner moves pursuant to CPLR 3212 for an order granting summary judgment: (1) converting the QTIP trust to a unitrust; (2) compelling the sale of the family business interests for fair market value; (3) removing the decedent’s sister as co-trustee and requiring her to file her account; and (4) disqualifying the decedent’s father as successor co-trustee and immediately appointing an independent corporate fiduciary to succeed as co-trustee. For the reasons that follow, the motion is denied, except to the extent that Deborah is directed to file an intermediate account of her acts as co-trustee of the QTIP trust as set forth below.

A New York Divorce Lawyer said the decedent died testate on December 7, 2001, leaving his wife, who is now forty-six years old, and two children, who are now twenty and nineteen, respectively. Petitioner and the decedent’s sister are sisters-in-law, the latter having been decedent's sister. Apparently, the close family relationship that existed between petitioner and the family while decedent was alive has deteriorated.

A Westchester County Family Lawyer said the decedent's last will and testament dated October 28, 1998 was admitted to probate by this court in April 2002. Letters testamentary and letters of trusteeship for the QTIP trust established in the will were granted on the same date to the sister and the wife. They qualified as such and have acted and are still acting in those capacities.

A Suffolk County Family Lawyer said the decedent's estate consisted of four main assets: his personalty, which he bequeathed to Penny under Article SECOND of the will; his Old Westbury residence, which passed to Penny under Article THIRD; his interest in the family businesses; and an investment portfolio at UBS Paine Webber consisting mostly of tax-free municipal bonds. The business interests and bond portfolio passed under Article FIFTH, the residuary clause to two trusts. Article FIFTH A created a credit shelter trust and Article FIFTH B created a QTIP trust. Penny is the income beneficiary of the QTIP trust. She and the sister are the co-trustees, and the decedent’s father is named as successor co-trustee.
By its terms, during petitioner’s lifetime, the co-trustees are directed to "pay to petitioner or apply for her benefit the entire net income of this trust, in quarter-annual or more frequent installments as may be convenient to the trustees". Additionally, the co-trustees have the discretion to pay to or apply for Penny's benefit as much of the principal as they, in their discretion, "shall deem advisable in order to provide for emergency expenses relating to her health, support and maintenance. In determining the amounts of principal, if any, to be paid or applied for the benefit of petitioner, I request (but do not direct) that my trustees take into consideration any income or resources of my said wife apart from this trust. My wife shall have the right to require my trustees to make productive any unproductive property of this trust or to convert such property into productive property within a reasonable period of time." (Will, Article FIFTH B[2])

The QTIP trust terminates upon petitioner’s death. At that time, any remaining principal is to be distributed in equal shares to Lee and Heather, if they are then living, and to any living issue per stirpes of her children if he or she is deceased when she dies, provided that any property distributable to either of them if they are younger than thirty-five-years old at the time is to be held by the co-trustees in a separate trust for that child's benefit, in accordance with the terms and conditions set forth in Article SIXTH of the will, the terms of which are irrelevant to this motion.

Article SEVENTH of the will authorizes the trustee or the trustees, by unanimous agreement, to appoint "another individual, or successive individuals in a named order, or a qualified bank or trust company as co-trustee or as successor trustee" with respect to each trust created by the will (Will, Article SEVENTH C). If petitioner were to be the sole trustee of any trust created under the will, Article SEVENTH directs her to "appoint an individual or qualified bank or trust company to serve with her as co-trustee of such trust."

According to decedent's federal estate tax return, the QTIP trust was funded in the amount of $14,310,091.85, with $8,369,930 attributable to decedent's interests in family businesses and the rest with assets from decedent's UBS Paine Webber accounts. The credit shelter trust was funded with $675,000 from the UBS Paine Webber accounts.

According to schedule F of the decedent's federal estate tax return, at his death, decedent owned interests in Kaplan family businesses, totaling $8,369,930, as follows: (1) one-third membership interest, valued at $2,416,667, in Brush Hollow Realty, LLC; (2) one-third membership interest, valued at $1,266,667, in Stewart Avenue Realty, LLC; (3) one-third membership interest, valued at $1,470,000, in Whitestone Expressway Realty, LLC; (4) one-third membership interest, valued at $150,000, in R.K. Associates, LLC, and $1,200,000 due on a loan he made to that entity; (5) one-third membership interest, valued at $1,393,333, in Golfers World, LLC; (6) one-third membership interest, valued at $86,232, in All-Care Pharmacy, Inc.; (7) one-third membership, valued at $0, in Westbury Seniors, Inc.; (8) twenty-five percent interest, valued at $298,028, in Nalpak, Inc.; (9) twenty-five percent interest, valued at $72,790, in Fona, Inc.; (10) twenty-five percent interest, valued at $14,751, in Storage Quarters, Inc; and (11) twenty-five percent interest, valued at $1,462, in Whitestone Storage Quarters, Inc.

Summary judgment may be granted only when it is clear that no triable issue of fact exists. The court's function on a motion for summary judgment is "issue finding" rather than issue determination, because issues of fact require a hearing for determination. Consequently, it is incumbent upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law. The papers submitted in connection with a motion for summary judgment are always reviewed in a light most favorable to the nonmoving party. If there is any doubt as to the existence of a triable issue, the motion must be denied.
If the moving party meets his or her burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial. In doing so, the party opposing the motion must lay bare his proof.

Decedent's federal estate tax return reflects $14,310,091.85 as the value of the assets in the QTIP trust, including the interests in the various family businesses of $8,369,930. During her deposition, the sister admitted that the assets listed on schedule F have not paid any money to the QTIP trust. She claims that the reason is that no income has been produced is because the entities have had "only losses. These are all new business." However, she claims that, since decedent died, petitioner has received substantial amounts of income from the QTIP trust, of approximately $360,000 annually, primarily in tax-free income from the estate accounts. The sister asserts that "this represents a tax-free return in excess of five percent per year on the cash invested in the UBS account, which conservatively translates into a pre-tax return in excess of seven percent per year." She also asserts that petitioner has benefitted to the detriment of the credit shelter trust by withdrawing, with her "reluctant consent," all of the previously unswept interest, dividends and realized capital gains from the inception of the estate UBS account to the May 2004 inception of the segregated QTIP and credit shelter UBS accounts.

Petitioner asserts that the admitted failure of the business assets in the QTIP trust to pay any income to the trust since decedent died in 2001 necessitates the conversion of the QTIP trust pursuant to EPTL11-2.4.

EPTL 11-2.4[e][2][B] provides that a court having jurisdiction over a trust to which EPTL 11-2.4 "otherwise would not apply, upon the petition of the trustee or any beneficiary of a trust, and upon notice to all persons interested in the trust, may direct that this section shall apply to the trust." In this instance, jurisdiction has been obtained all over interested parties. In turn, EPTL 11-2.4[e][5][B] states that "in any proceeding brought pursuant to subparagraph (e)(2), there shall be a rebuttable presumption that this section should apply to the trust."

That does not mean, however, that the court must grant the petition to convert to unitrust, even in the absence of rebuttal evidence. Because the statute provides that the court "may" direct that the trust be administered as unitrust, the decision to grant a petition seeking an order converting a trust to a unitrust rests in the discretion of the court. As Surrogate held in Matter of Ives (192 Misc 2d 479 [Sur Ct Broome County 2002]), an uncontested application to convert to unitrust, the court's inquiry does not end with the presumption.

Thus, neither petitioner nor the court can rely solely on the presumption afforded by the statute without considering the other statutory criteria. Furthermore, this is a motion for summary judgment; to prevail the movant must establish her right to judgment as a matter of law. The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Here, petitioner has not established her right to judgment as a matter of law on the statutory criteria which the court must consider. Even if she had, the opposing papers raise triable issues of fact regarding, among other things, the decedent's intent with regard to the trust; the need for liquidity and the preservation and appreciation of capital; and the likelihood of the assets soon becoming income producing.

Accordingly, that branch of the motion for summary judgment on the conversion of the trust to unitrust is denied.

Viewing the record in the light most favorable to the sister and the father of the decedent, as this court must the court finds that petitioner has failed to establish her right to judgment as a matter of law. Although the court does not take these allegations lightly, they are insufficient to remove her as co-trustee or disqualify the father as successor co-trustee without the benefit of a fact-finding hearing. Further, even if she had, the opposing papers raise material issues of fact, including whether the Maple Avenue property should be included as an asset of the QTIP trust and whether the sister has engaged in self-dealing. Accordingly, petitioner’s motion for summary judgment on the issues of removal and disqualification is denied.

The court does find that petitioner is entitled to an intermediate account of the sister’s acts as co-trustee of the QTIP trust under SCPA 2205 and directs the sister to commence an accounting proceeding within sixty date after notice of entry of the order to be settled.

For the reasons set forth above, petitioner’s motion for summary judgment is denied, except to the extent that the sister is directed to file an intermediate account of her acts as co-trustee of the QTIP trust. The court notes that the proceeding is scheduled for trial commencing on March 26, 2007, at 9:30 a.m., with the pre-trial conference on March 19, 2007, at 10:00 a.m.
If you want to contest the probate of a will, seek the help of a Nassau Family Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates.

Court Discusses Condemnation Proceedings

September 9, 2015,

A New York Family Lawyer said that, in condemnation proceedings, claimant appeals, as limited by its brief and on the ground of inadequacy, from so much of a partial final decree of the Supreme Court, Nassau County, dated May 2, 1979, as awarded compensation for the improvements on the condemned realty.

In 1954, appellant leased some 361/2 acres of beachfront property on the south shore of Long Island from Ovide de St. Aubin and Manlio Liccione. (Liccione divested himself of his interest in the property prior to this proceeding.) The parties stipulated that their respective interests in the improvements in the property, in the event of condemnation, would be 71.7% to appellant and 28.3% to St. Aubin. These figures were reversed with respect to their respective interests in the land itself. Appellant constructed on the property a large clubhouse for catering, cabanas, lockers, swimming pools, tennis, handball and basketball courts, and other facilities, at a cost of.$2.5 million. The business operation of these facilities was a failure, however, and in 1968, at which time the beach club facilities had a stipulated depreciated value of $1.38 million, the facilities were condemned by the respondent town. From the time of condemnation until the present, the town operated the premises, as had appellant, as catering and recreational facilities. Indeed, the town has not made any substantial structural changes in the improvements on the property. In 1977 it realized an income of approximately $400,000 from the operation of the facilities.

Special Term found that the highest and best use of the condemned property would be single-family residential use, and thus denied compensation for the reproduction value of the beach club facilities, in that they interfered with the highest and best use of the property. We conclude that this ruling was error. There is substantial support for the proposition that the value of improvements which interfere with the judicially-determined best use of condemned property, and which consequently must be destroyed, is not compensable. However, this case is manifestly different. Not only did the improvements not have to be destroyed, but they were actually utilized by the town in connection with the use to which it put the property. Under circumstances such as these, where improvements inconsistent with the best use of the land are nonetheless utilized by the condemnor for the purpose for which they had been erected, the value of the improvements must be compensated. It would be both irrational and unfair for the town to use the beach club structures for the same purposes as did appellant, and yet not compensate it for the structures because they are inconsistent with the best use of the land.

A New York Divorce Lawyer said that consequently, the town should compensate appellant for the reasonable reproduction value, less depreciation, of the structures, such sum to be determined after a hearing.

A Westchester County Family Lawyer said that the controversy here concerns not only the total amount of the award for the taking of a parcel known as the Malibu Beach and Cabana Club, but also how the award should have been arrived at. The property consists of 36.413 acres in the "Lido strip" between Lido Boulevard and the Atlantic Ocean in Lido Beach, Nassau County, with 800 feet of frontage on the ocean and 750 on Lido Boulevard. When the Town of Hempstead took the property in 1968, it was improved with six one-family dwellings, 428 cabanas, 212 lockers, a clubhouse with catering facilities, snack bars, tennis and handball courts, swimming and wading pools, parking areas and other related facilities. Although the town's continued use of the property as a beach and cabana club is the focus of the attack on the award, the events of the 14 years before the taking are at least as pertinent.

A Suffolk County Family Lawyer said the paramount question at Special Term was the highest and best use applicable to the property. The town and St. Aubin contended that single family residential development constituted the highest and best use and that the property therefore should be valued as acreage with an increment for potential development. The experts who supported this view asserted that Malibu's 14-year history (as well as that of the neighboring clubs) demonstrated that the beach and cabana club improvements were not economically feasible. One major consequence of these conclusions as to highest and best use was to render the beach club improvements inconsistent with such residential use so that they became valueless. Indeed, residential development would have required removal of the beach club improvements at substantial expense.

Malibu argued that profitability is not the primary test of highest and best use since the definition of such use must include consideration of community environment and the fact that the improvements continued to be utilized for the benefit of the town once they were taken established their importance to the community. Since no comparable sales of beach club properties existed and no income approach to value was employed, Malibu contended that summation was the appropriate method of ascertaining the value of the property. Its expert added the $1,380,000 sound value of the beach club improvements, the $175,000 he estimated as the value of the residences on the property, and $35,000 per acre for the land, and arrived at $2,850,000 as the total award to be apportioned according to the allocation formula.

Special Term decided that the highest and best use of the property was for the development of single-family dwellings, and that the beach club improvements could not be allocated any value because they impeded the residential use. Relying on comparable acreage sales, the court valued the land at $59,000 per acre for a total of $2,148,367 and the six dwellings at $175,000. Of the resulting "rounded" award of $2,323,000, Malibu's allocated share of the total seems to be only $733,460 and it attacks both the methodology relied upon and the total valuation found. My colleagues have accepted Malibu's contention that the town's continued use of the property compels its valuation by summation criteria and they would reverse and return the matter to Special Term for further consideration. I would affirm.

Where private property is taken for public use, the Fifth Amendment requires that the owner be awarded just compensation, " 'just' both to an owner whose property is taken and to the public that must pay the bill". There are a number of recognized techniques for ascertaining fair market value at the highest and best use. These include the "market data" approach generally involving proof of comparable sales.

Principles of justice and equity require us to use a degree of flexibility in employing standards to ascertain just compensation. "Fair market value has normally been accepted as a just standard. But when the market value has been too difficult to find, or when its application would result in manifest injustice to the owner or public, courts have fashioned and applied other standards". We may, therefore, fashion other standards, but we should do so only to prevent manifest injustice.

The standard Malibu asks us to apply in this case is compensation based on what the taker has gained. "One of the most confusing aspects of the theory of valuation under the law of eminent domain is that presented by the problem of value to the taker" The PATH case involved the condemnation of the Hudson Tubes and the controversy principally concerned the compensation to be set for the Hudson River tunnels. In 1911 these tunnels had cost $32,000,000 to construct but by the time of condemnation reproduction would have cost over $400,000,000. But times had changed since 1911, and 50 years after its operations had begun, the Hudson Rapid Tubes Corp. was compelled to reorganize under the Bankruptcy Act. It continued to suffer financial setbacks and ultimately its property was condemned in order to continue an essential public facility which might otherwise have ceased functioning. With no basis by which to ascertain the market value of the railroad itself, the Appellate Division reversed Special Term's award of $55,000,000 and fixed compensation at $3,500,000, of which $1,700,000 represented the value of railroad cars, $500,000 working capital, and $1,300,000 the estimated value of the tunnels and other railroad property. The Court of Appeals disagreed, finding that the scrap value award of "virtually nothing" for tunnels which initially cost $32,000,000 and which would have cost $400,000,000 to reproduce at the time of condemnation constituted an egregious violation of justice, particularly since the condemnor intended to continue to use the facility. Accordingly, it awarded the condemnee $30,000,000, the depreciated original cost of the tunnels. Since there can be little genuine connection between this original expenditure made more than a half-century prior to the condemnation and the value of the tunnels when condemned, the figure awarded has no cognizable relationship with any recognizable standard of real property valuation. PATH represents a strong judicial reaction to palpable injustice, but it provides precious little guidance for resolution of other "manifest injustice" situations.

In my view, the Malibu award represents sound disposition of a three-way dispute. Although the total of the award will change if Malibu's contentions are adopted, the primary controversy is really between landlord and tenant and its resolution at Special Term does not constitute a manifest injustice which we should cure by fashioning a different remedy. In 1968, Malibu was not the sole owner of the land and improvements which comprise the beach club; indeed, it owned a little more than a quarter of the fee, the rest being leased from St. Aubin. When the property was taken, Malibu's lease had but seven years to run, although two 21-year renewal options were available to it. Considering Malibu's dismal record of financial failure, the likelihood that the options would have been exercised seems quite slim. Since title to the improvements was to vest in the owner at the expiration of the lease, the greatest prospect is that St. Aubin was seven years from acquiring most of the beach club improvements when the town decided to extinguish all private interests in the property.

Where there are two or more interests in a condemned parcel, the proper mode of assessing damages is to ascertain first the damage to the fee as if it were unencumbered and then apportion that amount among all the interests which are held in the property. The damages to which a lessee is entitled are generally the value of the leasehold, and a lessee who has made improvements to property which are to pass to the landlord upon expiration of the lease, is entitled to have the value of those improvements become an item of value to be considered to the extent they have enhanced the market value of the leasehold. The traditional method of valuing a leasehold is to award the difference between the rental value of the leasehold for the unexpired portion of the term and the rent reserved for that period (Matter of City of New York.
Here, the usual considerations relative to apportionment over which owners and lessees frequently debate were supplemented by an agreement by which the landlord and tenant fixed their respective percentage entitlements to the components of the award. The agreement does not, however, dispose of the threshold question as to what standard of valuation should be applied in appraising those components, and it sheds no light on the question of manifest injustice. In my view, manifest injustice analysis in a case such as this cannot proceed without reliance on traditional criteria to ascertain the value of the leasehold itself. Malibu certainly was deprived of the improvements for the seven unexpired years of the lease, but my strong doubt that the lease ever would have been renewed inclines me toward the belief that no manifest injustice resulted either from the Special Term's reliance upon the highest and best use approach or from its award by which Malibu became entitled to more than $730,000 for its interest in the fee and leasehold, including the right to use the improvements for a financially failing operation for another seven years.

A Suffolk County Family Lawyer said the application of the summation method to the instant taking would reward Malibu for what the record clearly indicates was an improvident investment.

Summation is a method by which society attempts to provide just compensation where other conventional valuation standards shed insufficient light on value because the property taken is a specialty. But in its effort to be just to propertied interests, the judicial system has been careful to be fair as well to the public by establishing as criteria for specialty status the financial validity of the investment made and the likelihood that the use will be reproduced elsewhere if the property is taken. These standards represent not merely the technical rationalizations of appraisal sophisticates they are clearly intended to avoid rewarding those whose poor investment judgment has resulted in the construction or purchase of improvements unsuited to the land, ill chosen from the point of view of financial return, and unlikely to be reproduced elsewhere. Moreover, and apart from their application to uses that can be classified as specialties, reproduction costs are disfavored as a method of valuation because of their inherently inflationary attributes. Since the cost approach "among other things, ignores entirely factors like functional obsolescence, is useful principally, apart from specialties, to set a ceiling on valuation". The reason, of course, is that no improvement is worth more than replacement cost less depreciation.

If property taken to be put to the same use as that of the owner must always be paid for on a reproduction cost basis at the condemnee's option, the prime beneficiaries will likely be those who have invested so poorly and whose improvements are so inappropriate to the land so as not to reflect highest and best use. Such improvident entrepreneurs will be in the position of receiving awards which reflect no discount for the fact that the market values of their properties have been limited by the poor judgment underlying the construction of specific improvements. Instead in this inflationary age the public need for their property will reward them with the current costs of reproduction, less depreciation, for improvements which either should not have been made in the first place or which should not have been purchased after construction.

Furthermore, since justice must then dictate that we offer the same benefits of the cost approach to those who have invested wisely, wise and unwise alike can reap from the public fisc a return never merited in the private market-place.

Decree reversed insofar as appealed from, on the law, with costs payable jointly by respondents appearing separately and filing separate briefs, and the matter is remitted to Special Term for further proceedings in accordance herewith.

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Court Hears Guardianship Proceeding

September 1, 2015,

A New York Family Lawyer said that, the petition presented in this Art. 81 guardianship proceeding raises two questions that this court has not previously addressed. The first is whether it is appropriate for a facility to petition the court solely for the appointment of a special guardian of the property of an alleged incapacitated person residing in its facility where the sole power sought is to complete the Medicaid application for the facility. The second question that follows is then where there is no healthcare proxy executed by the alleged incapacitated person does the Family Healthcare Decisions Act vitiate the need for a personal needs guardian. Here the court finds that a residential facility/hospital should not petition the court for the appointment of a special guardian for the sole purpose of seeking Medicaid benefits when the patient is clearly incapacitated and clearly needs a guardian of the person as well. For the reasons stated herein the court finds that the Family Healthcare Decisions Act is not a substitute for the appointment of a guardian of the person pursuant to Art. 81 of the Mental Hygiene Law.

A New York Divorce Lawyer said the petitioner herein is the administrator of the A. Holly Patterson extended care facility located at 875 Jerusalem Avenue, Uniondale, N.Y. where the alleged incapacitated person, AG, currently resides. He had been taken there after being treated at Nassau University Medical Center for a cerebral vascular accident (also known as CVA). AG is 80 years old and suffers from right hemiparesis, cognitive deficits, and seizure disorder, as well as dementia. He requires a gastrointestinal feeding tube for nutrition due to dysphagia, and is incontinent of bowels. He is bed bound and needs assistance with all activities of daily living. However, the court evaluator indicated in his report to the court that AG had the ability to communicate his wishes and therefore the hearing was held at the facility and AG was present.

Petitioner originally limited its application under Article 81 of the Mental Hygiene Law for the appointment of a special guardian of the property while acknowledging in their application that AG is an incapacitated person. When the court inquired prior to the hearing as to why petitioner did not also move for the appointment of a guardian of the person, petitioner stated that they believed it was not necessary because DA, a son of the alleged incapacitated person, had been located locally and it was the facility's position that because a surrogate was available the Family Healthcare Decisions Act allows for that surrogate to make all medical decisions for adult patients as needed. Further, even if no surrogate had been found the petitioner's stated position was that under the Family Healthcare Decisions Act the hospital may make medical decisions for the patient. Therefore, a personal needs guardian was not needed.

A Manhattan Family Lawyer said the Family Healthcare Decisions Act is a relatively new legislation. The legislative history of this act indicates the law was passed in order to fill a gap in the law for those individuals who do not have an appointed healthcare proxy agent because the individual never executed a healthcare proxy. “This legislation fills a gap that remains in New York law. ....this legislation establishes a procedure to facilitate responsible decision-making by surrogates on behalf of patients who do not have capacity to make their own healthcare decisions.” (McKinney's cons. laws of N.Y., Book 44,Public Health Law, Article 29–CC, p. 324, citing 1.2010 c. 8 § 1). Section 2994–d of the Public Health Law identifies the surrogate who will make healthcare decisions for the adult patient. The section provides that “one person from the following list from the class highest in priority when persons in prior classes are reasonably available, willing and competent to act, shall be the surrogate for an adult patient who lacks decision-making capacity.”

A New York City Lawyer said of note, the highest priority in surrogate designation is the guardian appointed by the court pursuant to Article 81 of the Mental Hygiene Law. The scope of authority of the surrogate is limited to making any and all health care decisions on the adult patient's behalf that the patient could make and only after an attending physician has determined that the patient lacks decision making capacity.

Upon a patient's admission to a hospital, that facility has to establish whether or not a patient has a surrogate. Hospitals have to establish decision making standards and procedures for routine and major medical treatment for adults who lack a surrogate under the statute, and lack capacity for decision making for routine medical treatment, and major medical treatment. According to the Family Healthcare Decisions Act, the hospital is the last resort for adult patients who would qualify for surrogate decision making under this article, but for whom no surrogate is reasonably available, willing or competent to act.” However, to rely upon this statute as a replacement for a proceeding for the appointment of an Article 81 guardian leaves an incapacitated person as defined by MHL § 81.02 without protection. Under the Family Healthcare Decisions Act, there is a presumption that an adult has decision making capacity “unless determined otherwise pursuant to court order or unless a guardian is authorized to decide about health care for the adult pursuant to article eight-one of the mental hygiene law.” Furthermore, that statute further provides that even if the hospital makes a determination that a patient lacks decision making capacity, “the patient's objection or decision shall prevail unless (a): a court of competent jurisdiction has determined that the patient lacks decision-making capacity or the patient is or has been adjudged incompetent for all purposes and, in the case of a patient's objection to treatment, makes any other finding required by law to authorize treatment.”

Therefore, a Westchester County Family Lawyer said that a hospital's determination that a patient lacks decision making capacity can be overridden by an incapacitated person who has not been deemed such by the court under Article 81 of the Mental Hygiene Law. In such a case, both the hospital, and the surrogate, (if a surrogate is available), are both unable to make any medical decisions on behalf of the patient unless the surrogate is a guardian appointed under Article 81 of the Mental Hygiene Law. It is clear that under the Family Healthcare Decisions Act, a surrogate on the list, and also the hospital itself, do not have the same authority as a court appointed guardian to make medical decisions on behalf of a patient who objects to medical treatment.

Furthermore, for the movant to state that the Family Healthcare Decisions Act renders the appointment of a guardian under Article 81 of the MHL unnecessary ignores the whole panoply of powers that a guardian of a person has for the protection of an incapacitated person as delineated under MHL § 81.22, such as the ability to change the place of abode of an incapacitated person. The guardian's powers under MHL § 81.22 far exceeds the authority given to a surrogate under the Family Healthcare Decisions Act which is limited to making medical decisions on behalf of the patient.

Based upon the foregoing, it should be clear that the legislative intent behind the enactment of the Family Healthcare Decisions Act was for the express purpose of filling the gap where a person does not have a designated healthcare agent by executing a healthcare proxy. It is this court's opinion that the Family Healthcare Decision Act was clearly never meant to be a replacement for a court appointed guardian under article 81 of the Mental Hygiene Law. This court finds that any residential facility, such as the petitioner, who commences a guardianship proceeding under article 81 of the Mental Hygiene Law, claiming a person is incapacitated, should not limit its application to a special guardian of the property for purposes of Medicaid applications and payment of outstanding debt, but should also move for a guardian of the person. In these circumstances where an individual is in need of a guardian of any type and there is no healthcare proxy or power of attorney, the court must protect that individual's interests as though it were its own. Hospitals acting as both care giver and medical decision maker for incapacitated persons in their care may have an inherent conflict of interest in making those decisions which decisions the legislature has allowed as the last resort when there is no surrogate available. In this proceeding, the court has not limited its determination to petitioner's application for special guardian of the property, but has rendered a determination as to whether the alleged incapacitated person also needs a guardian of the person.

Accordingly, after a hearing held on August 3, 2012 and August 12, 2102, the court hereby finds that it has obtained in personam and subject matter jurisdiction over AG, who currently resides at A. Holly Patterson Extended Care Facility, 875 Jerusalem Avenue, Uniondale, New York 11553 and who is eighty (80) years of age. The record reflects that he has difficulties with cognitive functions and has been diagnosed with hemiparesis, cognitive deficits, and seizure disorder, as well as dementia. He requires a gastrointestinal feeding tube for nutrition due to dysphagia, and is incontinent of bowels. He needs assistance with all activities of daily living.

From said evidence, a Suffolk County Family Lawyer said it is clear to the court that AG has certain functional limitations which impair his ability to manage his own personal needs and property; that he cannot fully understand such inability and, further, that he may suffer harm and danger if a guardian is not appointed on his behalf.

Viewing the record in its entirety and this hearing having been conducted pursuant to Article 81 of the MHL and this court, having heard the proof and reviewed the petition and supporting papers together with the report and testimony of the court evaluator, the court hereby find by clear and convincing evidence that AG is an incapacitated person as defined under section 81.02 of the MHL in that he is not able to provide for his own personal needs and property management.

It is, therefore, the decision of this court that a guardian of the person, and special guardian of the property shall be appointed and, based upon the evidence produced and the recommendation of the court evaluator, it is the court's determination that the most appropriate and suitable individual to serve as guardian of the person is DA, and the individual best to serve as special guardian of the property is petitioner.

The order and judgment to be submitted herein shall provide for the guardians to have all those powers requested in the moving papers, as authorized under sections 81.22 and 81.16 of the MHL, and to make any and all decisions consistent with the functional limitations of AG, and which decisions are obviously in his best interest and welfare.

The special guardian of the property shall exercise those powers specifically enumerated in paragraph 9 of the verified petition. The guardian of the person shall exercise those powers enumerated under MHL § 81.22, with the exception that change in place of abode shall require approval by the court.

If the special guardian deems it appropriate, in addition to establishing a luxury account in the maximum amount allowed by the Nassau County Department of Social Services, he shall also be authorized to use the guardianship funds for the purpose of establishing an “irrevocable funeral trust” with a reputable funeral establishment in the state of New York, for future burial expenses. The appointment of guardian of the person herein shall be for an indefinite duration upon the filing of a designation.

The duration of the appointment as special guardian shall be until the special guardian is discharged by the court after the duties enumerated above have been completed, and the filing of a report to the court by the special guardian on all matters done pursuant to the order of appointment. The guardian of the person shall be required to visit with the AG not less than six (6) times a year.

In addition to the foregoing findings, the order and judgment shall also provide for compensation to the guardian and special guardian which shall be fixed in the further orders of the court from time to time.

It shall also provide for compensation to be paid from the guardianship account, if any funds are available, to the petitioner's attorney and to the court evaluator. Both shall be required to serve and file an affidavit of services prior to the entry of the order and judgment, as to any and all services performed in this Article 81 proceeding, up to and through the issuance of the commission to the guardian.

Based on all of the foregoing, the petition is granted in accordance with this court's findings as spread on the record, the order and judgment shall be settled on appropriate notice to the interested parties by the petitioner. A stenographic record of this court's decision shall accompany the proposed order and judgment.

If you are facing a similar situation in the case at bar, seek the help of a Nassau Family Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates.

Court Decides Private Placement Adoption

August 31, 2015,

A New York Family Lawyer said that, in this private placement adoption the natural mother of the subject child, born on October 21, 1976, and her husband, the alleged father, by order to show cause dated November 17, 1977 request an order: (1) vacating and setting aside the natural mother’s consent to the subject child’s adoption; (2) dismissing the adoption proceeding filed by the respondents; (3) requesting the court to determine the custody of the child; and (4) directing the respondents to deliver the subject child to the petitioners.

A Nassau Order of Protection Lawyer said that, following extensive and protracted pre-trial discovery by all parties, testimony was heard by Surrogate for 16 days commencing November 17, 1978 and concluding on July 1, 1980. The transcript is in excess of 2,100 pages with 23 exhibits in evidence. During the course of the discovery and hearing, the court rendered 8 decisions, and the guardian ad litem appointed by the court to represent the interests of the child filed 3 interim and 1 final report. On July 31, 1980, before he could render a decision, Surrogate retired, which requires this court to render a decision on a bitterly contested matter which it did not hear.

A New York Divorce Lawyer said the powers incidental to the jurisdiction of the court under Subdivision 8 of SCPA 209 empowers the court, "To determine any unfinished business pending before its predecessor in office and to sign and certify papers or records left uncompleted or unsigned by its predecessor." The genesis of this subdivision is Section 20(9) of SCA, which in turn was derived from the Code of Civil Procedure.

In the case subjudice on July 1, 1980 at the conclusion of the testimony of petitioners' last witness, Surrogate asked counsel whether anyone desired to submit any additional testimony. Upon being informed that none did, he stated that the hearing was closed. The court then asked whether any counsel wished to submit any additional papers. Counsel for the respondents replied in the negative; counsel for the petitioners requested 3 weeks; and the guardian ad litem requested time to file his report. Judge then stated that the matter would be submitted for decision on July 23, 1980 subject to the guardian ad litem's report, reminding counsel to serve upon opposing counsel any papers filed with the court.

A Nassau County Family Lawyer said on October 21, 1976 the mother, who was then 15 years of age, unmarried, and a 9th-grade high school student living with her parents, gave birth to the subject child. On October 26, 1976, while she was still in the hospital, the mother signed consent to the adoption of the subject child to the respondents in the presence of her mother, aunt, and respondents' attorney and his wife, who arranged for the delivery of the subject child to her by the natural mother. On October 27, 1976 her mother, with her present, took the child from the hospital and delivered her to the wife of the attorney retained by the respondents for the child’s adoption, who in turn delivered the child to the adoptive parents later that same night. The natural mother never saw the child.

A Staten Island Family Lawyer said following the issuance of the order to show cause, petitioners obtained a writ of habeas corpus from the Supreme Court of Nassau County alleging that the child was being illegally detained and physically and emotionally neglected by the respondents. Following a hearing, that court, by decision dated April 7, 1978, refused to intervene in the adoption proceeding here since the issues in both the habeas corpus and adoption proceedings were identical, and dismissed the writ on April 24, 1979.

While testimony was being taken, the Supreme Court of the United States rendered its decision declaring subd. 1, par. (c) of Section 111 of the Domestic Relations Law unconstitutional insofar as it permitted the adoption of an out-of-wedlock child on the consent of the natural mother but did not require a like consent from the putative father. The father thereupon moved to dismiss the respondents' adoption proceeding since he, the natural father, had not consented to the adoption. The respondents thereupon challenged his status as the father of the child.

By decision dated August 27, 1979, the court directed that a hearing be held limited to determine the status of Joseph as Susan's father. Following the paternity hearing the court rendered a decision finding that by a preponderance of the evidence, Joseph was the father of the child. At that time there was no statutory authority for the Surrogate's Court to hold a paternity hearing. Since then the legislature has amended Section 111-b of the Domestic Relations Law authorizing the Surrogate's Court to determine paternity in the course of an adoption.

As a result of the holding in the Caban case and in an effort to supply court-requested guidelines, the legislature amended Section 111 and 111-a of the Domestic Relations Law relating to private placement adoptions and the comparable provisions of the Social Services Law relating to agency adoptions to provide for consents by and notices to the natural fathers of out-of-wedlock children in certain enumerated instances. Under the 1980 amendments to Section 111 of the Domestic Relations Law two new categories of individuals whose consent to an adoption are required have been added. One being a father of an out-of-wedlock child placed with adoptive parents more than six months after birth, and the other, a father of a child born out-of-wedlock who is under six months of age at the time of placement. The latter category, which this case would fall under, requires a consent only if three conditions are met: that the father has openly lived with the child or the child's mother for a continuous period of six months preceding placement; that he has openly held himself out to be the father during such period; and has paid a fair and reasonable sum, in accordance with his means, for expenses in connection with pregnancy or birth of the child. While the father here could qualify under the second condition mentioned, the first and third condition disqualifies him from the category. The result being that the father would not be one of those unwed fathers whose consent would be required even though the uncontradicted evidence adduced clearly reveals him to be a concerned, caring father entitled to the equal protection and due process rights granted him under the Caban case of which he would be deprived by the 1980 amendments. Since the amendments became effective prior to this court's decision, they are applicable to this case.

While legislative guidelines should be afforded to the courts, this case demonstrates that the legislative guidelines enacted are too restrictive and do not deal with the many different Caban -type fact patterns that can be involved. Accordingly, the court finds that insofar as this unwed father is concerned, Section 111 subd. 1, par. (c) of the Domestic Relations Law is unconstitutional and his consent to the adoption would therefore be required under the Caban case unless for some reason, such as abandonment, that consent may be dispensed with.

The Appellate Division affirmed the order of the family court which directed the return of the infant to the natural parents' custody, holding that the consent of the natural father, which was not sought or obtained, was required under Caban v. Mohammed where the claim of abandonment was unsupported and found the natural mother's consent tainted by family pressure.

There is abundant uncontradicted testimony that the father, upon learning of the natural mother’s pregnancy, following a discussion with her concerning obtaining an abortion, accompanied her to a municipal hospital for pre-natal care; stated that he wanted his name on the baby's birth certificate; and offered to pay for her delivery, which was rejected by her mother. The natural mother’s parents and siblings were hostile to him, denying him contact with her as soon as they learned of her pregnancy, as well as subsequent to the birth of the child.

The social worker for the hospital in which she was confined during her childbirth testified that prior to her admittance, she received a telephone call from a woman who said she was the father’s sister, informing the social worker that she was scheduled to deliver a baby at the hospital and that she was "going to be forced by her parents to give the baby up for adoption and that the father and his family did not want the child adopted but wanted to raise the baby themselves." The sister asked the social worker for information on the rights of the father as the natural father to be designated as the father on the birth certificate. The social service worker then made inquiry of the Nassau County Department of Social Services Adoption Unit. She testified she was told that unless the couple were married, the natural father had no rights to the baby except by special court order which would give him the right (sic) to support the child, but not to care for it; that he could only be designated the father on the birth certificate if the natural mother signed an affidavit stating that the father was the father and mailed the affidavit to the Bureau of Records in Albany (Exhibit 12). This information was related first to the father’s mother and then repeated to his sister.

The father testified about his attempts to visit the natural mother in the hospital and see his child which were frustrated by hospital personnel as well as her mother. He further testified that he made inquiry at the Family Court of Queen's County, in which county she and he resided, and of the Family Court of Nassau County, where the child was born, as to the necessary procedure to enable him to obtain custody of his daughter but apparently received no assistance.

The issue of the validity of the natural mother’s consent to the adoption is more difficult. The testimony adduced indicates that she was an immature teenager under great emotional and mental stress because of her pregnancy and the problems caused by the birth of the child. She was under great pressure from her family, particularly her mother, who made all of the arrangements for the surrender and adoption of Susan. Except for the discussions had with the hospital social worker, she was not afforded an opportunity to discuss her problems, free from emotion and tension, so that she could choose from various alternatives available to her the one she desired.

The natural mother was not permitted by her family to see the father of her daughter, nor any member of his family, who desired to raise the child rather than give her up for adoption. Based upon the entire record, it is the court's considered opinion that her consent to the adoption was induced by the duress of her mother. The mother’s consent to the adoption must be set aside because of the duress exercised upon her by her mother. Notwithstanding a finding of duress which would invalidate the consent, there has been no showing of any unfitness or other circumstance on the part of the natural mother which would prevent her from withdrawing her consent.

Accordingly, (1) the consent of Cathy to child’s adoption by respondents is set aside; (2) the adoption proceeding instituted by respondents for the child’s adoption is dismissed; and (3) although this court has the power to determine her custody and to order her returned to the petitioners or such other disposition, including transfer of the child to the Family Court, the abrupt termination of the child’s relationship with the respondents might prove disastrous for Susan's well-being. Accordingly, this matter is referred to the Nassau County Family Court, which has the requisite support personnel in its probation department which this court lacks to make a proper determination in accordance with the best interests of the child.

If you want to fight for the custody of your child, seek the legal representation of a Nassau Child Custody Attorney and Nassau Paternity Attorney at Stephen Bilkis and Associates.

Husband and Wife Dispute Separate Property

August 30, 2015,

A New York Family Lawyer said that, petitioner and respondent were married on September 26, 1996, and were living together, with their children, in the marital residence located at 245 Hallman Avenue, Oceanside, New York 11572. A divorce proceeding was brought 8 years later in 2004, and the divorce was finalized by a judgment of divorce rendered in the Nassau County Supreme Court on September 8, 2008. The judgment of divorce regarded the marital domicile as a "separate property of [the husband]." Furthermore, it was adjudged that the wife must "remove from the former marital residence no later than 3 months following the entry of final judgment." If the wife was unable to obtain suitable housing in the area, the judgment of divorce provided that respondent may "move for a reasonable extension of this deadline upon showing a bona fide diligent effort." However, before the divorce was finalized, petitioner claims that respondent entered into possession of the marital residence by way of an oral license made on October 31, 2007, which expired on March 30, 2009. Thus, accordingly, on March 19, 2009, a 10-day notice to quit was served upon the respondent, requiring her to vacate from the subject premises by March 30, 2009. The respondent, however, has failed to surrender possession of the marital residence.

By motion dated July 12, 2009, the respondent, and now former wife of petitioner, seeks to dismiss the instant holdover proceeding instituted by her ex-husband. The respondent asserts three affirmative defenses in which she denies that an oral license agreement was entered into on October 31, 2007 and alleges that she is not a licensee, but a tenant, and thus, cannot be evicted in a summary proceeding. Additionally, respondent claims that she is entitled to a 30-day notice to quit, as opposed to a 10-day notice to quit. According to the affidavit submitted by the respondent, the respondent claims that the petition is defective in several respects: (1) The petitioner failed to serve respondent with a 30-day notice to vacate making the petition materially defective. (2) The petitioner alleged that respondent is a tenant, but served only a 10-day notice to quit. (3) In the alternative, the proper forum to decide all issues of possession is the Nassau County Supreme Court.

A New York Divorce Lawyer said that after an extensive review of all corresponding documents associated with this matter, the court concludes that respondent's motion to dismiss is denied on the grounds that (1) this court has proper jurisdiction to adjudicate the issues presented, (2) the respondent is deemed to be a licensee in accordance with RPAPL 713 (7), and lastly, (3) a 10-day notice to quit is sufficient to dispossess the respondent due to her status as a licensee.

First, a Queens Family Lawyer said that contrary to the respondent's contentions, this court is the proper forum to decide issues regarding the possession of the premises in question. Although this court has jurisdiction over evictions of licensees, pursuant to Domestic Relations Law §§ 234 and 236, "where a matrimonial action is pending between a husband and wife, the matter of the occupancy and possession of the marital home should be determined by proper proceedings in the action."

However, a Long Island Family Lawyer said in the instant proceeding may be distinguished from such principle due to the fact that the marital domicile is indisputably the petitioner's property and is not considered to be a marital property. This fact is illustrated in the Nassau County Supreme Court's judgment of divorce, where it is stated that the marital residence is the "separate property of the husband." This indicates that the marital residence could not become the subject of dispute after the dissolution of marriage. The marriage between petitioner and respondent has been dissolved, and the issues stemming from the possession of the marital home are separate from the prior divorce proceedings. Furthermore, there is no evidence that respondent has availed herself of the option of extending the deadline set forth by the Supreme Court. Although the Supreme Court of Nassau County is appropriate to determine ownership of the marital domicile, the District Court has jurisdiction to determine possession. Hence, this court holds that the District Court of Nassau County is the appropriate forum to resolve the issues presented.
Second, the respondent's assertion that she is a tenant, and not a licensee, is without merit. "The relationship of landlord and tenant is always created by contract, express or implied, by the terms of which one party enters into possession of the land of another party." A tenant is described as "[o]ne who holds land by any kind of title, whether for years, for life, or in fee," and who is "subject to the rendering or payment of rent or service to landlord."
In Daniel Finkelstein and Lucas A. Ferrara, Landlord and Tenant Practice in New York § 2:19 (West's NY Prac Series, vol F, 2009), the following appears: "§ 2:19. Defining the relationship — `Tenant,' defined "A "tenant" has been defined as one who holds or possesses lands or tenements by any kind of right or title, whether in fee, for life, for years, at will, or otherwise.' In a more restricted sense, a tenant is one who has, by express or implied consent, been afforded the exclusive use and occupation of another's space or property with the duration and terms of this occupancy usually fixed by an instrument called a `lease.'"
Although this court is mindful that the respondent is referred to as a "tenant" in the petition, an examination of the rest of the court documents shows that respondent is treated as a licensee. Furthermore, respondent has not proved that she had an agreement with the petitioner to remain on the premises as a tenant. No evidence has been presented to suggest that there was an agreement or an express or implied lease between the disputing parties. Thus, respondent's contentions cannot be verified.

Alternatively, since no landlord-tenant relationship exists between the parties, the respondent is appropriately classified as a licensee pursuant to RPAPL 713 (7). "New York's definition of `licensee' is not codified by statute and is instead left to the common law." As generally understood, "a licensee is one who enters upon or occupies lands by permission of the owner, or under a personal, revocable, nonassignable privilege from the owner, without possessing any interest in the property".

It is a well-settled principle that a spouse cannot qualify as a licensee and be evicted via a summary proceeding. In Rosenstiel, plaintiff instituted a summary proceeding to evict his alleged wife from the marital home. The Appellate Division reversed the lower court's decision, and held that the statute authorizing a special proceeding to remove a licensee from property cannot apply to the defendant wife whose rights have not been annulled or modified by decree or agreement.

Conversely, courts have not exemplified such congruence in regard to other sensitive familial relationships other than the spouse. For instance, in regard to cohabitating couples, the courts have had diverging opinions about the legal status of a live-in girlfriend.

The instant case seems to present an issue of first impression in the State of New York. This court's research has not uncovered a case where an ex-husband seeks to evict an ex-wife and two minor issue after an expiration of an alleged oral license and after a divorce decree has been rendered. In the instant case, the respondent ex-wife of the petitioner has continued to live in the marital home after an alleged oral license has expired, and well after the time granted by the Supreme Court. Respondent is allowed, under the terms of the divorce decree, to seek a further stay of her eviction, but has failed to prove that she took any steps allowed under the decree to extend her occupancy.

The law is clear that a spouse cannot be considered a "licensee," and, thus cannot be subjected to summary proceedings under RPAPL 713 (7). However, the case at bar must be distinguished from this established principle because here the respondent is no longer the wife of the petitioner. The dissolution of their marriage was finalized prior to petitioner's summary proceeding that is before this court. The legal marital relationship has ceased to be recognized by the State; therefore, respondent is not entitled to remain on the separate property of the petitioner. Additionally, there are also other instances in which the respondent was ordered to vacate the petitioner's premises in the absence of a landlord-tenant relationship.

Finally, RPAPL 713 (7) states that "a special proceeding may be maintained after a ten-day notice to quit has been served upon respondent" where respondent is "a licensee of the person entitled to possession of the property at the time of the license, and his license has expired." As stated, the court rejects respondent's claim as being a tenant, and is therefore subject to eviction based on the summary proceeding instituted by petitioner.

In view of the foregoing conclusions, a judgment of possession is granted in favor of the petitioner and against the respondent. However, the warrant of eviction is stayed until December 31, 2009.

If you have marital issues, seek the help of a Nassau Family Attorney and Nassau Spousal Support Attorney at Stephen Bilkis and Associates.

Interesting Case Regarding Invitro Fertilization

August 29, 2015,

A New York Family Lawyer said that, the instant case presents this court with issues of first impression in New York regarding the status and ultimate disposition of fertilized human ova that are the product of an in vitro fertilization (hereinafter IVF) procedure in which one of the prospective parents no longer wishes to participate. Although the parties have raised, inter alia, various fundamental legal and policy arguments in support of their respective positions, we conclude that this controversy is governed by the intent of the parties as clearly expressed in the provisions of an informed consent document which they voluntarily executed as participants in the IVF program and in a subsequent "uncontested divorce" instrument which they executed shortly thereafter, both of which manifest their mutual election that the IVF program should retain the cryopreserved pre-zygotes for approved research purposes under the circumstances of this case. Furthermore, by stipulating to the decision of this matter on submissions, the parties have charted their own course and the plaintiff, not having submitted sufficient evidence to support her contentions, cannot prevail.
The plaintiff and the defendant were married on July 4, 1988. Apparently as a result of her in utero exposure to Diethylstilbistrol (DES), the plaintiff experienced difficulty in conceiving a child through coital relations. Accordingly, the parties enrolled in the Long Island IVF program at John T. Mather Memorial Hospital and at that time executed a "General IVF Consent Form No. 1". It is undisputed that the parties underwent 10 unsuccessful attempts to have a child through IVF between March 1990 and June 1993, at a total cost in excess of $75,000. The last of these procedures commenced in May 1993. On May 12, 1993, prior to the procedure, the parties executed a single, seven-page informed consent document dealing with cryopreservation and consisting of two sections, to wit: "INFORMED CONSENT FORM NO. 2: CRYOPRESERVATION OF HUMAN PRE-ZYGOTES", comprising pages one to five of the document, and "INFORMED CONSENT FORM NO. 2--ADDENDUM NO. 2-1: CRYOPRESERVATION--STATEMENT OF DISPOSITION", consisting of pages six and seven. Insofar as relevant, the first section of the document contained the following general language regarding cryopreservation: "III Disposition of Pre-Zygotes. "We understand that our frozen pre-zygotes will be stored for a maximum of 5 years. We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law. In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction. Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage.

A New York Divorce Lawyer said that "The possibility of our death or any other unforeseen circumstances that may result in neither of us being able to determine the disposition of any stored frozen pre-zygotes requires that we now indicate our wishes. THESE IMPORTANT DECISIONS MUST BE DISCUSSED WITH OUR IVF PHYSICIAN AND OUR WISHES MUST BE STATED (BEFORE EGG RETRIEVAL) ON THE ATTACHED ADDENDUM NO. 2-1, STATEMENT OF DISPOSITION. THIS STATEMENT OF DISPOSITION MAY BE CHANGED ONLY BY OUR SIGNING ANOTHER STATEMENT OF DISPOSITION WHICH IS FILED WITH THE IVF PROGRAM" (emphasis supplied).

A Brooklyn Family Lawyer said that in the second section of the informed consent document, the parties expressly stated their intent as to the cryopreservation and disposition of the pre-zygotes as follows: "We understand that it is IVF Program Policy to obtain our informed consent to the number of pre-zygotes which are to be cryopreserved and to the disposition of excess cryopreserved pre-zygotes. We are to indicate our choices by signing our initials where noted below. "1. We consent to cryopreservation of all pre-zygotes which are not transferred during this IVF cycle for possible use in (sic) by us in a future IVF cycle. "2. In the event that we no longer wish to initiate a pregnancy or are unable to make a decision regarding the disposition of our stored, frozen pre-zygotes, we now indicate our desire for the disposition of our pre-zygotes and direct the IVF Program to: "(b) Our frozen pre-zygotes may be examined by the IVF Program for biological studies and be disposed of by the IVF Program for approved research investigation as determined by the IVF Program" (emphasis supplied).

Subsequently, on May 20, 1993, a Bronx Family Lawyer said that numerous ova were removed from the plaintiff. Two days later, four fertilized ova were implanted in the plaintiff's sister, who had agreed to act as a surrogate. The five remaining pre-zygotes were cryopreserved by the IVF program pursuant to the parties' express wishes as set forth in "ADDENDUM NO. 2-1" of the informed consent document, set forth above.

A Nassau Family Lawyer said that, on June 4, 1993, the parties were advised that a surrogate pregnancy had not resulted from the May 20th procedure, and the plaintiff's sister changed her mind and refused to continue her participation. Their hopes dashed, the parties agreed almost immediately thereafter to dissolve their marriage. Hence, on June 7, 1993, the parties executed a document typed by the plaintiff which provided for an uncontested divorce. Significantly, that instrument set forth their understanding of what they previously had agreed to in the informed consent document with regard to the disposition of the remaining cryopreserved pre-zygotes.

Notwithstanding the foregoing, the plaintiff changed her mind and, on June 28, 1993, wrote letters to both the hospital and to her IVF physician advising them of the parties' marital difficulties and stating her adamant opposition to the destruction or release of the five pre-zygotes. The plaintiff then commenced this matrimonial action by summons and verified complaint filed July 21, 1993. Among the various items of relief sought therein was the plaintiff's request that she be awarded "sole custody of the frozen fertilized eggs now being held at Mather Memorial Hospital". The plaintiff indicated that she wanted possession of the pre-zygotes so that, rather than having them implanted in her sister as on the previous occasion, the plaintiff herself could undergo yet another IVF implantation procedure. In his verified answer, the defendant opposed both the removal of the pre-zygotes from cryopreservation and any further attempt to achieve a pregnancy, and counterclaimed for specific performance of the parties' election to permit the IVF program to retain the pre-zygotes for study and research, as provided in "ADDENDUM NO. 2-1" of the informed consent document.

By stipulation executed December 17, 1993, the parties resolved all financial and property issues in the matrimonial action, but reserved their rights with respect to the custody and possession of the pre-zygotes. By further stipulation dated April 25, 1994, the parties agreed, inter alia, to submit their respective arguments regarding custody or possession of the pre-zygotes to the court for determination. Additionally, on or about January 9, 1995, the parties agreed to rely solely on the papers submitted to the court.

In a memorandum decision dated January 18, 1995, the Supreme Court, Nassau County, ruled in favor of the plaintiff and awarded her possession of the five pre-zygotes. The court began by reasoning that while the pre-zygotes did not have the legal status of "persons", they clearly enjoyed a status above that of mere property. The court went on to determine that a husband's procreative rights in a situation involving in vitro fertilization were no greater than in the case of an in vivo fertilization, such that those rights essentially terminated at the moment of fertilization, making the disposition of the pre-zygotes a matter exclusively within the wife's unfettered discretion. The court further determined that the informed consent document executed by the parties was not dispositive of the controversy and merely provided that in the event of divorce, a court was to decide the matter. The court also reasoned that the disposition chosen by the parties in "ADDENDUM NO. 2-1" of the informed consent document was not applicable in "a divorce situation". Finally, the court determined that the parties' "uncontested divorce" agreement of June 7, 1993, which never became operative, did not constitute a waiver by the plaintiff of "her right to determine the future of the subject zygotes". By judgment entered February 23, 1995, the court, granted the plaintiff "the exclusive right to determine the fate of the subject pre-embryos", including their utilization in another attempt to achieve pregnancy. This appeal by the defendant ensued. On May 26, 1995, the judgment was stayed pending the determination of this appeal. For the reasons which follow, we disagree with the Supreme Court's resolution of the matter and instead find that the parties' mutual intent regarding the disposition of the pre-zygotes, expressed in the informed consent document executed contemporaneously with the last IVF procedure and in the uncontested divorce instrument, should be given effect.

We begin our analysis with the observation that all of the members of this panel, including the concurring and the dissenting Justices, agree that the Supreme Court committed a fundamental error in equating a prospective mother's decision whether to undergo implantation of pre-zygotes which are the product of her participation in an IVF procedure with a pregnant woman's right to exercise exclusive control over the fate of her non-viable fetus. It is well settled that the latter authority is premised on the woman's right to privacy in the area of reproductive choice.

Turning to the record before us, we find that such an unequivocal statement of intent exists in this case by reason of the parties' execution of the aforementioned informed consent document. Indeed, reading that document as a whole, it is clear from the tenor of its language as well as from its liberal use of the words "we", "us", and "our" that the parties' very participation in the IVF program is premised on their status as a married couple committed to a single joint decision to use IVF in an attempt to achieve parenthood. Indeed, in paragraph III--"Disposition of Pre-Zygotes"--of Informed Consent Form No. 2, it is expressly stated: "Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law" (emphasis supplied).

Moreover, at numerous points throughout the document, the parties, as a married couple, acknowledge their joint right and obligation to provide for the disposition of any stored pre-zygotes in the event that they cannot render such a joint decision at some point in the future. Significantly, the only specific dispositional language in the entire informed consent document appears at page six of that instrument, where the parties jointly state their intention to permit the IVF program to retain the pre-zygotes for approved research and investigation in the event that they are unable to make a decision regarding the disposition of the pre-zygotes. Since the parties now in fact no longer agree with regard to this matter, they are no longer able to render the single, joint decision regarding the disposition of the pre-zygotes which the informed consent document contemplated. Accordingly, their prior statement as to disposition, as set forth at page six of the informed consent document, should be given effect according to its clear and unambiguous terms. Given these circumstances, we agree with the defendant's position that the pre-zygotes must be retained and used by the IVF Program for scientific purposes, a result consistent with the parties' expressed wishes.

In view of the foregoing, and in keeping with the spirit and tenor of the entire document, we find that the provision cited by the plaintiff is rationally interpreted to mean that death and incapacity are merely examples of contingencies which will prevent a joint decision and will therefore render consideration of the parties' expression of intent appropriate, but they are not the only events which will do so.

In conclusion, we find that the decision to attempt to have children through IVF procedures and the determination of the fate of cryopreserved pre-zygotes resulting therefrom are intensely personal and essentially private matters which are appropriately resolved by the prospective parents rather than the courts. Accordingly, where the parties have indicated their mutual intent regarding the disposition of the pre-zygotes in the event of the occurrence of a contingency, that decision must be scrupulously honored, and the courts must refrain from any interference with the parties' expressed wishes. The documentary evidence overwhelmingly demonstrates that the parties in this case made such a clear and unequivocal choice, and the plaintiff's subsequent change of heart cannot be permitted to unilaterally alter their mutual decision. Accordingly, the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for entry of a judgment directing that the disposition of the five pre-zygotes shall be in accordance with paragraph 2(b) of Addendum No. 2-1 of the parties' informed consent agreement.
Accordingly, the court held that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for entry of a judgment directing that the disposition of the five pre-zygotes shall be in accordance with paragraph 2(b) of Addendum No. 2-1 of the parties' informed consent agreement.
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Court Decides Child Neglect Case

August 28, 2015,

A New York Family Lawyer said the issue before this Court is whether a finding of neglect as to a newborn and the newborn's older sibling may be based solely on the newborn's positive toxicology for a controlled substance. We conclude that more than a positive toxicology is generally required for a neglect determination. We affirm in this case because, as the Appellate Division concluded, there is additional evidence in the record supporting the Family Court's findings of neglect.

A New York Divorce Lawyer said that, appellant gave birth to her son in November 1990. Both mother and son tested positive for cocaine. After learning of the positive toxicologies, the Nassau County Department of Social Services (DSS) brought a petition pursuant to section 1022 of the Family Court Act to temporarily remove Dante from appellant's care. Family Court conducted a hearing on the removal petition on November 21, 1990.

A Manhattan Family Lawyer said at the hearing, DSS presented evidence that the son was born with a positive toxicology for cocaine and a low birth weight. DSS also presented evidence that appellant had a history of cocaine abuse, had been admitted to several drug rehabilitation centers, and that appellant's mother had custody of two of appellant's children because appellant's drug use rendered her incapable of caring for them. Appellant's mother informed DSS that she had observed appellant high on cocaine in the last weeks of appellant's pregnancy with the son. Appellant told DSS that she smoked a cigarette at a Halloween party at the end of her pregnancy which may have contained cocaine.

A New York City Family Lawyer said the appellant did not present any witnesses at the removal hearing, but argued that DSS had failed to sustain its burden of proof because no toxicology report or witnesses to recent drug abuse had been produced. Appellant's counsel also argued that appellant had not admitted to recent, intentional, drug use. Family Court dismissed the petition and directed the hospital to release the son to appellant's custody. That removal proceeding is not before us.

A Nassau Order of Protection Lawyer said that, DSS subsequently brought this consolidated child protective proceeding against appellant on behalf of appellant's son, and the daughter (born in 1987), appellant's daughter. At the fact-finding hearing, DSS introduced into evidence two medical reports showing a positive toxicology for cocaine from the son and positive toxicology for cocaine and opiates from appellant. DSS also presented evidence of appellant's prior history of drug abuse and appellant's admission that she may have smoked a cigarette containing cocaine, while she was pregnant with her son, at a Halloween party.
Appellant presented two experts who testified that appellant provided a clean, well-ordered environment for her children, that appellant interacted appropriately with her children and that four random urine samples taken from appellant tested negative for controlled substances. The experts opined that appellant had not been a regular user of controlled substances since the latter half of the 1980's. The experts also testified that appellant was voluntarily receiving counseling at a general education and support program run by the Family Service Association. Appellant did not testify at the fact-finding hearing.

The son’s medical records reveal a primary diagnosis of prematurity, even though they also indicate 38-39 weeks of gestation, with a low birth weight (4 pounds, 14 ounces) for his gestation period. He remained in the Neonatal Intensive Care Unit for the duration of his stay at the Nassau County Medical Center. He was released to the custody of his mother on November 21, 1990, after the Family Court refused to order removal.

The medical records also contain a note from the medical center's social worker documenting a phone call from appellant's aunt at the beginning of November, before the son’s birth, alerting the social worker to appellant's drug use and expressing concern about his health. The records further contain a discharge assessment form indicating a discharge diagnosis of prematurity and advising follow-up care in the high-risk clinic.

Section 1012(f)(i)(B) of the Family Court Act defines a "neglected child" as a child less than 18 years of age "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired" because of a parent's failure to exercise a minimum degree of care "by misusing a drug or drugs." Thus, the statute sets forth two predicates for a finding of neglect: actual physical, emotional or mental impairment, or the imminent danger of such impairment.

Although physical impairment is not defined by statute, section 1012(h) of the Family Court Act defines "impairment of emotional health" and "impairment of mental or emotional condition" as "a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior". The Practice Commentaries to section 1012 use that statutory definition as a model to define "impairment of a physical condition" and arrive at the following formulation: "a state of substantially diminished physical growth, freedom from disease, and physical functioning in relation to, but not limited to, fine and gross motor development and organic brain development".

The imminent danger standard is not specifically defined by statute, but clearly reflects the judgment of the Legislature that a finding of neglect may be appropriate even when a child has not been actually impaired, in order to protect that child and prevent impairment. Consequently, the imminent danger of impairment to a child is an independent and separate ground on which a neglect finding may be based.

A report which shows only a positive toxicology for a controlled substance generally does not in and of itself prove that a child has been physically, mentally or emotionally impaired, or is in imminent danger of being impaired. Relying solely on a positive toxicology result for a neglect determination fails to make the necessary causative connection to all the surrounding circumstances that may or may not produce impairment or imminent risk of impairment in the newborn child. The Family Court thus erred in concluding that the son’s positive toxicology alone was sufficient for the findings of neglect. A positive toxicology report, however, in conjunction with other evidence, may support a neglect finding. Even though here, the trial court did not make any findings linking the positive toxicology to physical impairment, the record contains other evidence which supports the findings of neglect on the ground that appellant's children were placed in imminent danger of impairment by appellant's drug use, and justifies the limited DSS intervention which was ordered.

The son was born prematurely, with low birth weight and a positive toxicology for cocaine. He required a specialized level of care and spent his entire hospital stay in the Neonatal Intensive Care Unit. After discharge from the hospital, he required a high degree of follow-up care at the high-risk clinic. Appellant had a history of being unable to care for her children because of her drug use and was observed high on cocaine during the end of her pregnancy with him. Although two experts opined that appellant had not regularly used drugs since the second half of the 1980's, appellant's mother and aunt stated that appellant had been high during the end of her pregnancy with him.

A trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding. Appellant did not testify at the fact-finding hearing. Consequently, it may be inferred that appellant knowingly used cocaine during her pregnancy. Appellant's use of cocaine during her pregnancy, considered in conjunction with her prior, demonstrated inability to adequately care for her children while misusing drugs provided a sufficient basis to conclude, at the least, that Dante was in imminent danger of impairment. Moreover, that same evidence indicated a substantial impairment of judgment leading to a conclusion of neglect.

Appellant's conduct and lack of judgment created an imminent danger of impairment as to the daughter, who was under appellant's care during that time period. Proof of neglect as to one child is admissible on the issue of neglect as to another. Appellant's neglect of Dante could be considered in determining whether appellant neglected her. Consequently, the Appellate Division had sufficient grounds to sustain the neglect findings as to the children.
The fact that appellant had a series of negative toxicology tests subsequent to the son’s birth, and that social workers testified at the fact-finding hearing that appellant was currently providing a good home were relevant in this proceeding to the disposition, and not to whether appellant previously neglected the children by her acts or omissions. It should be emphasized that there is no issue here of the removal of either children from the care of appellant. Nevertheless, the record supported the need to insure the adequacy of care provided to both children. The limited supervision ordered by the Family Court achieved this goal with an appropriate level of State intervention.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

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Court Rules on Hearsay Allegations

August 27, 2015,

A New York Family Lawyer said that, for an order dismissing paragraph 3B of the violation petition as jurisdictionally defective pursuant to Family Court Act §311.2, in that it allegedly is not "sufficiently supported by non-hearsay allegations," and further that it is not a condition of the Respondent's current order of probation; and for a dismissal of the entire violation petition "for reasons of res judicata;" and also pursuant to Family Court Act §315.2 for such other and further relief as the Court may deem appropriate.

Respondent was initially arrested on or about May 26, 2004, upon a petition that alleged acts which, if the Respondent were an adult, would be coercion in the first degree in violation of §135.65 of the Penal law, a class D felony and coercion in the second degree in violation of §135.60 of the Penal Law, a class A misdemeanor. A fact-finding hearing commenced on May 30, 2004 and concluded on July 21, 2004 with respect to that petition; the acts constituting coercion in the first degree were dismissed and the Court made an affirmative finding with respect to the acts of coercion in the second degree. Thereafter at a dispositional conference, Respondent was placed on probation on consent for a period of 24 months, from September 2, 2004. In addition to the usual conditions of probation supervision, special conditions consisted of the following: "no contact with the victim; no gang affiliations or associations, except for Respondent's brother; and Respondent to continue in counseling as directed."

A New York Divorce Lawyer said on January 3, 2005, petition A was filed, alleging certain violations of the order of probation. An admission was taken as to Respondent's continuance of illegal drug use, which resulted in a disposition of a new probationary period of two years commencing January 28, 2005. In addition to the usual conditions of probation supervision, the only special condition was: "cooperate with Brentwood Outreach House residential substance abuse treatment as directed by Probation."

A Westchester County Family Lawyer said that on February 24, 2005, petition B was filed alleging a violation of the order of probation of January 28, 2005, in that Respondent left her placement at Brentwood Outreach House and had not returned to the program. That petition was settled, without admission, on February 24, 2005, whereby, on consent, Respondent was continued on her probation pursuant to order dated January 28, 2005.

Thereafter, a Suffolk County Family Lawyer said that on January 26, 2006, a third violation petition was filed alleging that Respondent was in violation of various provisions of the order of probation dated September 2, 2004. A fact-finding hearing was held with respect to petition C on February 21 and February 22, 2006, resulting in this Court's dismissing the entire petition after Petitioner's case; and the prior order of probation dated January 28, 2005 was continued.

Violation petition D was then filed on August 7, 2006, alleging that Respondent violated her order of probation dated January 28, 2005, in that she left the residence and did not return, that her mother (with whom she resided) filed a missing persons report, and that Respondent's whereabouts remained unknown. The Court also issued a warrant of arrest for the Respondent. The warrant was executed on August 23, 2006, and a denial was entered, Respondent was remanded to the Juvenile Detention Center, and the matter was set down for a conference on August 25, 2006, at which time the Presentment Agency withdrew the petition.

Thereafter, and on August 25, 2006, a fifth violation petition was filed alleging four specific violations of the order of probation supervision of January 28, 2005. On Respondent's motion, the fourth allegation was dismissed upon res judicata grounds; and the second and third allegations were dismissed as, even if they were proven, they did not amount to a violation of the order of probation. That left one allegation, which was the subject of a hearing on September 20, 2006. After hearing, that petition E was dismissed.

On September 25, 2006 the instant petition F was filed by the Presentment Agency, alleging two specific violations of the order of probation dated January 28, 2005. Thereafter and on October 13, 2006, petition G was filed, alleging three specific violations of the order of probation of January 28, 2005 and a warrant was issued for Respondent's arrest. That warrant was executed on October 19, 2006; a denial was entered and the Respondent was remanded to the Juvenile Detention Center, where she still remains. (Although this violation petition is mentioned here, it is irrelevant to this Court's determination regarding the instant motion, other than by way of history.)

Initially, Respondent claims that the current violation petition is jurisdictionally defective, in that it is not supported by non-hearsay allegations. Although until recently the failure to include non-hearsay allegations to support a petition alleging a violation of probation was jurisdictionally defective, mandating a dismissal of the petition, this no longer is the law.
The Family Court Act makes no reference to the amendment of VOP petitions from which Markim would have us draw the unlikely inference that they cannot be amended at all, even to correct ministerial errors. But we do not infer from the Legislature's silence that it intended, for some hard to imagine reason, to make every word in a VOP petition sacrosanct. We conclude, rather, that, because a VOP petition is not a jurisdiction— creating document, the Legislature felt no need to specify when it can or cannot be amended; it left that issue, like the amendment of most documents filed at interlocutory stages of most proceedings, to the discretion of Family Court. VOP petitions are amendable with Family Court's permission (citations omitted).

Lastly, Respondent argues that pursuant to Family Court Act §315.2, the instant petition should be dismissed "in the interest of justice," and Respondent has thoroughly reviewed each of the seven factors which the Court may take into account, in order to grant such a dismissal. However, §513.2 is addressed solely to the underlying petition itself, regarding acts which would be crimes if the Respondent were an adult, and is not addressed to petitions alleging a violation of probation. Firstly, the very first sentence of that section states that it may be applicable to avoid "a finding of delinquency," and many of the seven criteria specifically mention the word "crime." Again, a violation of probation need not allege a crime and in fact the violation petition at bar alleges no crime, but merely violations of the Respondent's probation. In addition, that section is at the beginning of Article 3 which deals solely with an original under-lying petition, and does not appear further in that Article, dealing with violations of probation.

In another interesting argument, Respondent alleges that, since the period of probation supervision has been stayed, that she therefore is no longer subject to the conditions of probation supervision, and therefore she could not have violated any such condition.
Family Court Act §360.2(4) states that when a violation petition is filed, alleging violations of an order of probation supervision or of a conditional discharge, then the time of probation or conditional discharge "shall be interrupted as of the date of filing of the petition. Such interruption shall continue until a final determination" of the petition has been made.
Accordingly, this statute is simply a tolling of the probationary period, and precludes the termination of the probationary period while the petition is pending. Although the statute tolls the probationary period, it in no way temporarily vacates it. Respondent's counsel does not cite any statute or case law to the contrary, nor for her proposition that all of the conditions of probation supervision are somehow suspended so that the Respondent need not comply with any of them.

Were it otherwise, then all any Respondent would have to do would be to violate her conditions of probation, and immediately upon the filing of a violation petition, she would be free of any probationary conditions, including drug testing, drug treatment, meeting with the probation officer, conditions regarding schooling, therapy, counseling and the entire panoply of services usually mandated for probation supervision. In this Court's opinion, such a result cannot have been contemplated by the Legislature when §360.2 was enacted, and this Court declines to give the statute such an interpretation. It is this Court's considered opinion, that although the probationary period is tolled during the pendency of the violation petition, in no way is the Respondent released from the conditions of probation.

Respondent further argues that while he was on probation, that he had an absolute right to counsel before being questioned by the probation officer. This argument is rejected by this Court, as case law is clear that Respondent is not automatically entitled to counsel, not even counsel who represented him during the pendency of the initial juvenile delinquency matter (nor any subsequent violations of any order of probation). People v. Bing, 76 NY2d 331 (1990) is the leading case in this area, having been cited 205 times; and People v. Robles, 72 NY2d 689 (1988). See also United States v. Rea, 678 F2D 382 (2d Circuit 1982), stating at p. 390, that the defendant "had no right to have a lawyer present during an interview with his probation officer," which interview resulted in a probation revocation hearing; and People v. Miller, NYLJ, 6/15/2005, p 19, col 1, Sup. Ct of New York, Kings Cty 2005, stating that a defendant's right to counsel does not attach until the actual filing of the accusatory instrument (i.e. the petition alleging a violation of probation and "the pendency of that charge [before filing of the petition] did not, by itself, bar the police from questioning the defendant" on an unrelated matter. See also People v. Persons, supra at p. 196, in which the court held that, in a violation of probation case "the argument that the defendant was automatically represented by counsel on the violation of probation charges must fail. When a prior charge has been disposed of by dismissal or conviction, the indelible right to counsel disappears and the defendant is capable of waiving counsel on the new charge."

Respondent further argues, in effect, that if the violations in the petition at bar occurred, that they did not violate any of the conditions of Respondent's order of probation of January 28, 2005, and that the petition must be dismissed for that reason. As mentioned earlier in this decision, the probation order of January 28, 2005 contains the usual conditions of probation, together with the following: "cooperate with Brentwood Outreach House residential substance abuse treatment as directed by Probation." The Court notes that the three specific conditions of the order of probation supervision of September 2004, do not appear in the order of January 28, 2005.

The first allegation in the matter at bar alleges that Respondent failed to report to probation on August 8, 2006, and again on August 22, 2006. If proven, that allegation would violate Paragraph 4 of the conditions of probation supervision, which states "Report to the Probation Officer as directed and meet with the Officer as directed." The second allegation alleges that Respondent failed to attend her treatment at Glen Cove Community House on August 8, 2006. If proven, that allegation would violate paragraph seven of the conditions of probation supervision, which states "cooperate with a mental health or other facility as directed by the Probation Officer."

Accordingly, Respondent's instant motion to dismiss is denied in its entirety.
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Court Review Social Service Law

July 22, 2015,

A New York Family Lawyer said that, this termination of parental rights (TPR) proceeding was brought pursuant to Social Service Law (SSL) section 384–b by Petitioner against respondent in connection to her child, age four. The petition, filed August 24, 2009, seeks to terminate the parental rights of RM on the grounds of mental illness.1 The Court held a fact finding hearing on September 22, 2010, October 18, 2010, December 21, 2010, January 18, 2011, January 20, 2011, January 21, 2011, February 4, 2011, March 4, 2011 and April 26, 2011. On June 27, 2011, counsel delivered oral summations with supplemental written summations submitted to the Court on July 8, 2011.

A New York Divorce Lawyer said that, petitioner presented the testimony of one (1) witness: a qualified expert in the field of clinical psychology. Respondent presented the testimony of two (2) witnesses: a qualified expert in the field of forensic psychology, and RM who testified on her own behalf. Petitioner also submitted for judicial notice the following court orders, decisions and documents/photographs, in connection with the underlying child protective proceeding and prior termination of parental rights proceeding brought against RM as to her child, who was freed for adoption by order dated June 24, 2008.

The underlying child protective proceeding in this case involves the brutal murder of the child, by RM's ex-paramour, on November 21, 2001. A severe & repeated abuse petition, brought on behalf of the deceased child's surviving half-sibling was filed against RM and her ex-paramour, pursuant to Article Ten of the Family Court Act. Thereafter, a finding of severe & repeated abuse by clear and convincing evidence was entered against them both on June 10, 2003.

A Brooklyn Family Lawyer said that subsequently, a termination of parental rights proceeding was brought against RM as to her surviving child, on the grounds of repeated & severe abuse and permanent neglect. In two (2) separate decisions, dated December 26, 2006 and June 24, 2008 respectively, findings were entered against RM on each ground and the child was freed for adoption.

On February 20, 2007, third child, who is the subject of this proceeding, was born and placed directly from the hospital into foster care. A finding of derivative abuse was entered against RM as to the child December 8, 2008.The instant petition seeking to terminate RM's parental rights on the grounds of mental illness was filed eight (8) months later on August 24, 2009.
It is settled law that in a proceeding to terminate parental rights on the grounds of mental illness, the petitioner bears the burden of demonstrating by clear and convincing evidence, that the parent is presently, and for the foreseeable future, unable by reason of mental illness, to provide adequate care for a child. The statute explicitly prescribes certain procedural requirements to assist the court in determining whether a mental illness condition exists. Specifically, the court is required to order the parent to submit to an examination by a qualified psychiatrist or psychologist as well as take the testimony of the qualified medical examiner at trial on the question of not only whether the parent suffers from a “mental illness” but also whether such mental illness impairs the parent's present and future ability to care for his/her child.

A Bronx Family Lawyer said the clear and convincing standard of proof in a TPR proceeding is applicable as to each of the elements present in a case involving allegations of mental illness. Petitioner must first establish that the parent suffers from a mental illness as that term is defined in the statute. SSL § 384–b (6)(a). Next, petitioner must establish that the mental illness impairs the parent's ability to provide appropriate care to his/her child. Lastly, there must be sufficient proof presented to establish that the impairment caused by the diagnosed mental illness not only affects the parent's present ability to properly care for his/her child but that the nature and severity of the illness is to such a degree that it renders the parent unable to adequately care for their child for the foreseeable future. As such, petitioner must present proof not only of the parent's underlying condition the medical testimony must particularize how the parent's mental illness affects her present and future ability to care for her child.

With the exception of the APA guidelines pertaining to child protective matters, including TPR proceedings, and in contrast to the practice in child child custody litigation, this court was unable to identify the use of any established or suggested published practice guidelines and parameters for conducting court-ordered examinations of parents named as respondents in TPR proceedings brought on mental health grounds. Even though there are published APA guidelines for performing forensic evaluations in TPR proceedings, this Court found few reported cases where a court specifically ordered a forensic evaluation in a TPR case brought on the grounds of mental illness that complied with the guidelines published by the APA.

More commonly, pursuant to Social Services Law section 384–b(6)(e), courts appoint a qualified psychiatrist or psychologist to conduct a court-ordered examination of a parent and direct the respondent parent to submit to the examination. Thereafter, the court receives the opinion testimony of the court appointed expert as to their findings at the TPR proceeding. Often, court-ordered examinations may consist of a one-time interview of the parent and a review of the parent's prior medical, psychiatric, and/or other relevant records, if such materials are of the kind accepted in the profession as being reliable in forming an opinion. Should a parent refuse to submit to such a court-ordered examination or fails to make him or herself available, the court appointed expert is permitted to render an opinion solely on the basis of a review of the parent's available and relevant records. SSL § 384–b(e). The court must, however, first issue an order directing the parent to submit to an examination before it is permitted to enter a finding against the parent on the basis of expert medical testimony based solely on a review of relevant records.
Recognizing there are significantly different considerations, statutory requirements, and case law governing contested child custody cases from TPR proceedings, in this Court's view there should be equally comprehensive court-ordered examinations and reports presented to the court in both types of cases. In both kinds of cases the ultimate question before the court is what is in the “child's best interest.” Both kinds of cases involve fundamental parental rights in relation to their child. In a contested child custody case, the right at stake is the right to physical child custody and final decision-making as to one's child. It is a right that, even if denied in a particular litigation, can be modified if there is a showing of change of circumstances in the future. The standard of proof at trial in that instance is a preponderance of the evidence. In contrast, the right at stake in a TPR case is profoundly different from the loss of custodial rights. It involves the complete and final severance of all parental ties to one's child. There is also a higher standard of proof of clear and convincing evidence. Therefore, compelling reasons exist for requiring a thorough and comprehensive court-ordered examination and report in a TPR case.

Here, petitioner has failed to establish by clear and convincing evidence that RM suffers from a mental disease that renders her presently, and for the foreseeable future, unable to care for the subject child. The expert testimony provided to this Court by the court appointed psychologist and her written report in evidence fails to meet the rigorous standard which is required particularizing the harm posed to the child by the RM's mental illness.

To begin, the Court notes that despite the fact that the RM has been having unsupervised visits with the subject child twice a week for the past two (2) years, no effort was made by the doctor to assess the parent-child relationship. No collateral contacts were made by her with agency personnel or other key collaterals who have observed the visits between RM and the child. She did not conduct any parenting skills assessment or survey. This important shortcoming reflects the doctor’s mistaken understanding that her primary task was to evaluate RM's mental state and not her parental functioning. In addition to not performing any parenting skills testing or conducting any parenting surveys to assess RM's parenting strengths/weaknesses, the doctor did not conduct any psychological testing of RM. Instead,

Further, as pointed out by the doctor in his testimony, his reliance on the twenty-seven (27) records referred to in her report in formulating her expert opinion in this case is also troublesome. Although court appointed medical experts are permitted to review records not in evidence in performing court-ordered examinations in TPR proceedings, such records must be of the kind accepted in the profession as reliable in forming an opinion. Here, the doctor testified she both agreed and disagreed with some of the findings and conclusions of the records she reviewed and considered in conducting her evaluation. She did not, however, indicate specifically what records she relied on and which she rejected and her basis for doing so. Nor did she state what impact these reports had on her evaluation of RM and the expert opinion she offered as to the severity and nature of RM's mental illness and her ability to parent the subject child now and in the future.

Indeed, of the twenty-seven (27) records the doctor reviewed, many were only remotely, if at all, relevant to the issue of RM's mental illness. More than half of the records were copies of court documents such as permanency hearing reports and court reports involving the ten (10) year period of the instant child protective proceeding. It is not clear to this Court how some of these records are of the kind accepted in the profession as a reliable source for forming an opinion as to a parent's mental illness and the severity and impact of such mental disease on their ability to adequately parent a child.4 Indeed, many of the documents, which may have formed a basis for his expert opinion, included first and even secondhand hearsay information and opinions by lay persons not qualified to opine as to RM's response to the many years of out-patient mental health treatment she has received. In fact, his report even included references to records she reviewed that were subpoenaed from the NYC Administration of Human Resources pertaining to “food stamp and other benefit applications, sub-lease agreements, rent bills, and other similar materials pertaining to the respondent mother.”

In addition to the questionable expert medical evidence presented, this Court is also struck by the absence of evidence in key areas of RM's mental illness history necessary for determining the nature and severity of her mental illness and her present and future ability to adequately care for her child. For example, there was no evidence RM has ever been psychiatrically hospitalized, no evidence she suffers presently, or in the past, from any form of psychosis, and no evidence she has ever been non-compliant with mental health treatment or recalcitrant in adhering to any prescribed psychotropic medication. In fact, the doctor’s written clinical report indicates RM has been involved in out-patient mental health treatment since 2001, following the brutal death of her child Inez by her ex-paramour, and that her diagnosed Major Depressive Disorder and PTSD are in remission in response to the mental health treatment and medication she has received over the past several years.

One of petitioner's central arguments in support of the instant petition to terminate RM's parental rights on the grounds of mental illness is her role in failing to protect her child Inez from the brutal death she suffered at the hands of RM's ex-paramour and her present failure to accept full responsibility for her role in the child's murder. Petitioner maintained this is evidence of her total lack of parental understanding and empathy and confirmation of her diagnosed mental illness. In her report, the doctor concluded that RM appears to suffer from a demonstrated longstanding pattern of maladaptive personality traits, which she hypotheses, have led to significant functional impairment and contributed to the RM's prior involvement in a profoundly abusive relationship, resulting in grave harm to her children.

This Court also agrees and acknowledges that the principles of fairness and due process embedded in our laws imposes upon the court the role of gatekeeper in assuring that expert testimony is not only relevant but reliable. In this case, the court-ordered examination of RM and the expert testimony presented fails to satisfy the necessary indicia of reliability required to establish by clear and convincing evidence that RM's diagnosed mental illness renders her, by reason of mental illness, presently, and for the foreseeable future, unable to adequately care for her child. Further, no legal basis exists for requiring any less a comprehensive court-ordered examination in a TPR case brought on mental illness grounds than in a case involving a parent's right to child custody of his/her child. As such, the methodology for conducting a court-ordered examination in a TPR proceeding brought on grounds on mental illness should adhere to the guidelines published by the APA to ensure the court is provided with a comprehensive report and a thorough assessment of not only the parent's mental illness but his/her parenting and family functioning consistent with the requirements of the SSL. At a minimum, therefore, a court-ordered examination in a TPR case brought on the grounds of mental illness should involve interviews of the respondent parent, a thorough assessment of his/her parenting skills, including parent-child observations, a current psychological examination and testing, contact with collaterals and other professionals who are providing mental health treatment to the parent or who possesses first-hand information about the parent's over-all family functioning as well as a thorough review of relevant medical/psychiatric records and court records.

Given the many advances in the area of psychopharmacology, the inherent limitations of providing a mental health diagnosis and predicting future behavior and functioning, as well as the existence of established APA guidelines for conducting a reliable and comprehensive court-ordered examination for presentation in court, more than a one-time interview of a respondent and a review of records is necessary to enable a court to find that a respondent parent not only suffers from a mental illness as defined by SSL, but that the mental illness is so severe and debilitating that the parent is presently, and for the foreseeable future, unable by reason of mental illness, to provide adequate care to their child.

For all the reasons set forth above, the instant petition to terminate RM's parental rights on the ground of mental illness is denied in its entirety.

If you have issues regarding the custody of a child, seek the help of a Nassau Order of Protection Attorney and Nassau Child Custody Attorney at Stephen Bilkis and Associates.

Petitioners Bring Case Regarding Food Stamp Benefits

July 21, 2015,

A New York Family Lawyer said that, petitioners/plaintiffs commenced this hybrid proceeding/class action in June 2006, challenging reductions in their food stamp benefits. The reductions were made pursuant to a pilot project entitled the Group Home Standardized Benefit Program ("GHSBP"), instituted by Respondent/Defendant who is the Commissioner of the Office of Temporary and Disability Assistance ("OTDA") of the New York State Department of Family Assistance.

In the course of the proceedings herein, Plaintiffs were granted partial summary judgment on their claim that the State Defendant's implementation of GHSBP violated the state constitutional and statutory rulemaking requirements, Intervenor was granted leave to intervene, the application for certification of the Plaintiff class was denied, and the State Defendant's motion for summary judgment was denied. By decision and order dated May 19, 2009, the Appellate Division, Second Department, reversed the denial of class certification and identified the Plaintiff class as "consisting of all recipients of food stamps in the State of New York whose food stamp benefits were determined and reduced under the Group Home Standardized Benefit Program and whose monthly income included payments of Supplemental Security Income benefits.
In their class action complaint Plaintiffs sought an order requiring Defendants, inter alia, to pay the costs and disbursements, including reasonable attorneys' fees, of the Plaintiffs and the Plaintiff class pursuant to the State Equal Access to Justice Act and CPLR § 909. At this time, Plaintiffs seek payment of these expenditures by the State Defendant.

A New York Divorce Lawyer said after Plaintiffs made their motion for attorneys' fees, costs and disbursements, the motion was marked off the calendar on June 17, 2009, pending the outcome of settlement discussions. While settlement discussions were pending, the State Defendant moved to reargue the propriety of the certification of the Plaintiff class. This motion to reargue was denied by the Appellate Division, Second Department, by decision and order dated August 25, 2009. Within thirty (30) days of this denial, Plaintiffs restored their original motion for attorneys' fees to the calendar and made their motion for supplemental attorneys' fees, costs, and disbursements incurred since June 18, 2009. In terms of specifics, the total amount sought by Plaintiffs in both motions, for attorneys' fees, costs, and expenses is $352,745.02. This amount includes a 10% reduction of hours for attorneys Vollmer and Castellano in the exercise of billing judgment.

Pursuant to the State EAJA, an application for an award of attorneys' fees and other expenses must be made "within thirty (30) days of final judgment in the action." A judgment is "final" for State EAJA purposes if it is "final and not appealable" [CPLR § 8602(c)]. The decision and order of the Appellate Division, Second Department, dated August 25, 2009, denying reargument of the certification of the Plaintiff class is not appealable, and therefore it is final.

A Nassau County Family Lawyer said entitlement to attorneys' fees is governed by the New York Equal Access to Justice Act ("the State EAJA"), found at CPLR Article 86. The State EAJA is modeled on the Federal Equal Access to Justice Act, found at 28 USC 2412(d), and the case law construing that Act. The State EAJA provides that "a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the State was substantially justified or that special circumstances make an award unjust". The parties vigorously dispute whether Plaintiffs meet the statutory standard for relief.

A Staten Island Family Lawyer said that the State EAJA defines "prevailing party" to mean "a Plaintiff or petitioner in the civil action against the state who prevails in whole or in substantial part where such party and the state prevail upon separate issues". The threshold question presented is whether Plaintiffs come within this definition.

A party has "prevailed" within the meaning of the State EAJA if it has succeeded in acquiring a substantial part of the relief sought in the lawsuit. The Plaintiff must identify "the original goals of the litigation" and demonstrate "the comparative substantiality of the relief actually obtained.
In this case the goal of the litigation was to enjoin the State Defendant from implementing GHSBP and to obtain retroactive relief. In their fourth cause of action, Plaintiffs alleged that the State Defendant's implementation of GHSBP violated the rule-making requirements of Article IV § 8 of the New York State Constitution and Article 2 of the State Administrative Procedure Act ("SAPA"), because no GHSBP-related documents were filed with the New York Department of State, no state regulations were ever promulgated to govern the operation of GHSBP, and no GHSBP documents were published in the New York State Register. This Court agreed, and declared that the implementation of GHSBP violated the aforementioned provisions of the State Constitution and SAPA.

By Partial Final Judgment dated December 13, 2007, this Court enjoined the State Defendant from operating the GHSBP until it complied with SAPA and the State Constitution, reinstated the food stamp benefits issued to Plaintiffs immediately prior to GHSBP, and enjoined the State Defendant to retroactively restore food stamp benefits to Plaintiffs to the month prior to the application of GHSBP. As a result of the class certification directed by the Appellate Division, Second Department, cessation of the GHSBP will benefit approximately 18,500 SSI recipients who reside in group homes across New York State. Under these circumstances, it is clear that Plaintiffs' succeeded in acquiring a substantial part of, if not the complete, relief sought in this litigation. There can be no doubt that Plaintiffs are a "prevailing party" for the purposes of the State EAJA.

"Substantially justified" has been interpreted to mean "justified to a degree that could satisfy a reasonable person" or having a "reasonable basis both in law and fact". In this Court's Decision and Order granting partial summary judgment to Plaintiffs, this Court noted as follows: Review of the implementation of GHSBP to blind and disabled group home residents who receive PA (Public Assistance) or SSI (Supplemental Social Security Income), reveals that in the interests of easier and more accurate bookkeeping, food stamp benefits were slashed according to a simple formula.

The "special circumstances" referred to in the State EAJA have been described as a "safety valve," giving a court discretion to deny an award of attorneys' fees and expenses, where "equitable considerations dictate that an award should not be made". Here, the State Defendant has not even addressed this "safety valve," although it has attempted to demonstrate its good faith in the implementation of GHSBP. Suffice it to say that good faith conduct by the state is not a special circumstance that would warrant the denial of a request for attorneys' fees. On this record, the Court has found no equitable considerations that would dictate the denial of Plaintiffs' application for this award.

The fees to be awarded under the State EAJA are "reasonable attorney fees", which "shall be determined pursuant to prevailing market rates for the kind and quality of the services furnished". The formula for determining a fee application is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate". The correct standard for determining Plaintiffs' request is "what a reasonable paying client would be willing to pay". A court must apply a presumption in favor of applying the prevailing rates of its district, here, the Eastern District of New York which includes Nassau County.

At the outset, this was not a garden variety action. The State Defendant describes this action as "novel" and "highly complex" (Logue Affirmations at pp. 6-7, 9, 11 and 24). Plaintiffs note that their file occupies 1½ lateral file drawers and consists of 92 distinct court submissions (see Reply Memo of Law at p.48). With this perspective, the Court turns to the number of hours at issue.
The Court has reviewed the time records presented by Attorneys and finds that these records provide adequately detailed information regarding each legal service provided in increments of no smaller than five minutes. When combining the figures for each attorney on the two motions, the total hours for services rendered from 7/14/06 to 9/24/09 for Vollmer are 683.15 hours. The total hours for services rendered from 2/06 to 9/24/09 the other are 272.35 hours. As noted above, both attorneys have reduced their "raw" time by 10%, in the exercise of billing judgment. In addition, each attorney has billed separately for clerical time as follows: Vollmer — 68.55 hours; 17.15 hours. Time sheets are also submitted for paralegal services rendered by him in the total of 393.10 hours.

The State Defendant complains that Plaintiffs overstaffed the case, and the fees sought are therefore excessive and unnecessary. They object to paying fees for two senior attorneys and a paralegal. Yet as Plaintiffs point out, conferences in this action were attended by two government attorneys, and an occasional junior associate or paralegal. Especially given the novel and complicated issues presented, and the way that the attorney’s expertise supplemented rather than duplicated that o the attorney and the State Defendant's objection cannot be sustained.
For the record, Plaintiffs have never burdened this Court with duplicative papers such as those presented by the State Defendant herein, where the only difference between the State's 25-page affirmation in opposition to the original motion for attorneys' fees (with exhibits), and the State's 25-page affirmation in opposition to the motion for supplemental attorneys' fees (with exhibits), was the addition of the word "supplemental" in the title, and the misnumbering of the footnotes.
The Court further considers the expertise of Attorneys had more than 20 years of legal experience at the commencement of this action, including extensive experience in litigating class actions involving government entitlement cases. His appellate experience is considerable. He has represented indigent appellants at 290 administrative fair hearings and commenced 180 lawsuits in state and federal courts. He notes that of the 171 cases decided to date, his clients prevailed in whole or in substantial part in 136 cases (Plaintiffs' memorandum at pp. 27).
The attorney has devoted 33 years to poverty law practice. He has been employed by the Mental Health Law Project of Nassau/Suffolk Law Services Committee, Inc., and MFY Legal Services Inc. For more than twelve years he has served as the Attorney in Charge of the Mercy Advocacy Program, a law office that provides free legal services to the poor, primarily those living with mental illness and housed by Mercy Haven, Inc. in Nassau and Suffolk Counties. He handles approximately 240 open cases, writes funding proposals and supervises staff at the Mercy Advocacy Program.

Prevailing market rates in the community are the proper basis for an award of attorneys' fees. The prevailing market rate for attorneys with more than 25 years experience in this area appears to be $350-$400 per hour $300-375 per hour for partners in class action; $325 per hour awarded in connection with claims of intentional discrimination pursuant to 1981, false imprisonment, and negligence. Under these circumstances the Court finds that the hourly rate requested of $325 per hour for Attorneys is reasonable.

Given the scope and complexity of the facts and legal issues raised in this action, the amount of time expended by Plaintiffs' counsel is, for the most part, reasonable. The State Defendant has expressly identified a small number of instances where the submitted attorney hours are unreasonable, and therefore some deductions must be made. Indeed, the Court finds that Plaintiffs' concessions on these limited objections, as set forth in their reply papers are appropriate, and therefore directs the following deductions from the amounts requested in the two motions: (1) Travel time — 5 hours of attorneys' fees, and 17½ hours of paralegal fees to be reduced to clerical rate. Attorney Vollmer reduced the charge for travel time from his hourly rate of $325 to the clerical rate of $25.00 per hour; also, paralegal rate of $85 per hour was reduced to $25 per hour for travel time. (2) Lobbying and media interactions — 25 attorney hours to be deducted (21 hours from and four hours for lobbying to eliminate the "government operations rule" by statutory amendment. (3) Amicus-related activity — 26 hours attorney hours, and one paralegal hour to be deducted in connection with the Rivera amicus.

The remainder of the State Defendant's objections do not warrant discussion and have already been taken into account by the 10% reduction of raw time by both attorneys. After the three identified deductions are made from the totals requested in the original motion for attorneys' fees and the motion for supplemental attorneys' fees, the motions are granted.

Are you facing issues regarding attorney fees? Seek the help of a Nassau Order of Protection Attorney and Nassau Family Attorney at Stephen Bilkis and Associates.

Father Appeals Custody Hearing Awarding Custody to Grandparents

July 19, 2015,

A New York Family Lawyer said that, this is an appeal by the father of an 11-year old boy (1) from an order of the Family Court, Nassau County, entered July 31, 1973, which, without a hearing, awarded custody of the boy jointly to the 74-year old maternal grandmother and his 21-year old sister and the latter's 20-year old husband, with visitation granted to the father, and (2) from so much of an order of the Supreme Court, Nassau County, entered October 17, 1973, as referred and remanded the question of custody to the Family Court, Nassau County, for a full hearing and determination.

At issue in these appeals is the custody of an 11-year old boy. The boy was three months old when his parents separated in November, 1962. Custody was with his mother until she died on February 9, 1973. The boy then remained with his sister. Within a month after the death of the boy's mother, his father sought custody in the Family Court, Nassau County, as did the sister and her husband and the maternal grandmother. On the basis of a conversation with the boy, a report of the Family Court Mental Health Clinic and a report of the Nassau County Probation Department, but without a hearing, the Family Court awarded custody to respondents.

Thereafter, appellant obtained a writ of habeas corpus, which resulted in the second order under review.

A New York Divorce Lawyer said in our opinion, the matter should be remitted to the Family Court for a full hearing and determination, with temporary custody in the father pending such determination.

A Westchester County Family Lawyer said the Judge in the reversal of the Family Court order, but dissents from so much of the determination as remits the matter for a hearing and votes to grant final custody to the father; and also dissents from the affirmance of the Supreme Court order and votes to reverse that order insofar as appealed from and to sustain the writ and grant custody to the father, with the following memorandum:

A Suffolk County Family Lawyer said in my opinion, no hearing is necessary. Following the death of the mother, the appellant father filed a petition in the Family Court, Nassau County, seeking custody of his son. Respondents filed a cross petition and thereby took upon themselves the burden of proving the father had either abandoned his son or was an unfit parent. They failed to do this and I see no reason for giving them a second opportunity at this time. In a contest such as this between a parent and nonparents, we must recognize the 'paramount parental right to raise one's own child', 'In no case may a contest between parent and nonparent resolve itself into a 'simple factual issue as to which (affords) the better surroundings, or as to which party is better equipped to raise the child.' Yet, my reading of the record convinces me that is what occurred, i.e., the Family Court decided the boy would be happier in familiar surroundings with his sister and maternal grandmother rather than upstate with his father. The child's happiness or welfare is important, but in a case such as this it must give way to the superior right of a parent to the care and custody of his or her child, absent abandonment or unfitness. As stated, respondents did not sustain their burden in the Family Court, and there is no present claim of abandonment or that appellant's 'fitness' as a parent has changed since that time. In fact, the only change has been on respondents' part, as it appears that the maternal grandmother has entered a nursing home subsequent to the Family Court's determination. The father's petition should have been granted and respondents' denied.

Accordingly, the order of the Family Court reversed, on the law and the facts, without costs, and matter remitted to that court for a full hearing and determination. Pending such new hearing and determination, temporary custody of the child shall remain with the father.

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