Plaintiff seeks a Writ of Mandamus

June 28, 2015,

A New York Family Lawyer said in this proceeding pursuant to Article 78 of the CPLR, the petitioner seeks a judgment, in the nature of a writ of mandamus, requiring the respondent County Treasurer to permit her to redeem two contiguous parcels of real property which were the subjects of tax lien sales and, upon petitioner's payment of the amount of said liens, together with any interest and penalties due thereon, directing the respondent County Clerk to cancel of record the deeds previously given by the respondent County Treasurer to the purchasers of the tax liens.

A Nassau County Family attorney said that the petition is grounded upon the claim that the petitioner, as owner of the property, was not given actual notice of the sale of the tax liens and that the respondents failed to comply with the notice requirements of the Nassau County Administrative Code.

A New York Divorce Lawyer said that before examining the facts underlying this application and before weighing the merits of the petition, it should be noted that although the petitioner has another procedural remedy available in that she could test the validity of the deeds given by the County Treasurer in an action in equity to determine adverse interests in the subject property, none of the respondents have challenged the appropriateness of reviewing the acts herein complained of by means of a proceeding under CPLR Article 78. Moreover, there is authority to the effect that mandamus is a proper vehicle for such review. While the parties have not raised the issue, the Court notes it because, as stated in the first of the cases cited Supra, 'the determination of the County Treasurer challengeable under Article 78 CPLR is his determination that the purchaser at the sale of the tax lien is entitled to a deed'.

A Nassau County Family Lawyer said in this case, the deeds to the two purchasers were executed and delivered on March 5th and March 9th of this year. The notice of petition and petition commencing this proceeding were served upon the respondent County officials on July 22nd and 23rd, more than four months later. Again, however, none of the respondents has questioned the timeliness of the proceeding, and, therefore, the Court will treat it on the merits.

A Staten Island Family Lawyer said the petitioner acknowledges that she failed to pay the second half of the 1967 County and Town tax levy on each of the two parcels involved herein. On the one lot, those taxes amounted to $486.60, and on the other, to $111.64. She claims that the omission was inadvertent and that the property, one parcel of which is improved by a one-family residence, is worth approximately $300,000.00. In any event, petitioner has submitted receipted tax bills showing that the school, town and county taxes levied subsequently were paid in full.
Significantly, in this Court's opinion, none of these subsequent tax bills gave notice that there were arrears due, although the form of the bill provides a space for such notice, and the Nassau County Administrative Code provides that notice of any arrears due shall be given in subsequent tax bills.

The major thrust of the petition is that the respondents failed to satisfy the notice requirements of the Nassau County Administrative Code applicable to the sale of tax liens and the foreclosure of the right to redeem following such a sale. The petitioner also contends that the provisions of the County Administrative Code specifying the manner in which notice to redeem is to be given are violative of the Due Process clauses of both the State and Federal Constitutions.

Prior to the issuance of the County Treasurer's deed, the purchaser, as indicated above, must cause to be served on other interested parties, including the 'owner in fee' and 'any other person having a lien, claim or interest * * *, the nature and degree of whose interest appears from the records kept by the county clerk, county treasurer, surrogate of the county and receiver of taxes for the town or city in which the property is located', a notice specifying, among other things, the identity of the property involved, the date upon which the purchaser at the tax sale may elect to foreclose the lien or accept the County Treasurer's deed, and the manner and period in which the party served may satisfy the tax lien.

Petitioner contends that the respondent purchasers did not comply with this requirement in connection with the notice to redeem on either of the two lots because the request for a return receipt, submitted by the respondents, did not request the post office to show the address where the registered mail was delivered.

The Court finds that the cumulative effect of the irregularities demonstrated by the affidavits and exhibits submitted in this proceeding were such as to deprive the petitioner of any substantial opportunity to redeem her property. It is true that she was under an obligation to keep herself informed as to what was transpiring with reference to her property and that, in failing to notify the Town Receiver of the change in her name and in the status of the ownership of the property, petitioner virtually 'invited' the difficulties that followed. Nevertheless, this Court fails to see why petitioner should be substantially penalized for these omissions by the loss of a valuable property when the respondent purchasers were at least equally remiss in failing to comply strictly with all the provisions of the applicable law.

They acknowledge that they did not request the post office to show the address where the registered notice to redeem was delivered, and they attempt to excuse that omission, in part, by claiming in their brief that until the commencement of this proceeding, the amendment of § 5--51.0, subdivision c, of the County Administrative Code mandating such a request 'was not of general knowledge either to the office of the Treasurer of Nassau County, the tax lien buyers, or counsel involved in this field'.

Certainly, the respondents were chargeable with knowledge of this amendment, and certainly they were chargeable with knowledge that subsequent tax levies against the property involved were timely and fully paid. Such a circumstance does not indicate that the owner had intentionally or otherwise abandoned the property. It does, on the contrary, indicate an intention on the taxpayer's part to protect his interest. It is evidence that the failure to pay the single levy in 1967 was inadvertent. It is, moreover, a starting place for anyone interested in locating the party who has such an interest in the property that he has been regularly paying the taxes thereon after the single default.

Moreover, in this Court's opinion, the Nassau County Administrative Code, insofar as it permits sale of the tax lien without any prior notice to the taxpayer other than publication of a list of properties affected in local newspapers, may not measure up to the standard of notice required by the Due Process Clause of the Fourteenth Amendment, unless the provisions thereof relating to service of the notice to redeem are construed, as they are herein, to require the purchaser to make diligent search for the identity and whereabouts of parties having an interest in the property and to comply strictly with the procedures set forth for giving such parties notice of the sale of the tax lien, the right to redeem, and the consequences of the failure to redeem.
'An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated * * * to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections'.

Of course, sale of the tax lien is not accorded finality under the Nassau County Administrative Code, and the failure of the County to give notice other than by publication of the impending sale may, therefore, be constitutionally permissible, so long as the procedures allowing the taxpayer to redeem after the sale are reasonably calculated to give him notice and an opportunity to be heard before final disposition of his property is made.

Since, therefore, those provisions of the Administrative Code relating to the giving of such notice are, in the Court's opinion, constitutionally mandated, the failure of the respondent purchasers to comply strictly therewith cannot be excused and the relief sought in the petition must be, and is, granted.

In cases of unsettled marital disparities, we have our Nassau County Divorce Attorneys who shall render their service and determine if your marriage must be petitioned before the courts for its dissolution. For cases involving rightful custody over a child, a Nassau County Child Custody Lawyers are always available to help you.

Plaintiff Seeks an Order Annulling Social Security Judgment

June 27, 2015,

A New York Family Lawyer said that this is one of a series of applications numbering between motions and cross motions almost twenty all of which deal with the same aspects of public assistance grants in the category of Aid to Dependent Children. Petitioner seeks an order annulling a determination after fair hearing by Respondent Blum and a declaratory judgment invalidating the rules of the New York State Department of Social Services with respect to the recovery of advance utility payments as well as the procedure employed by the Nassau County Department of Social Services in recovering such payments pursuant to 18 NYCRR § 352.29(e).

A Nassau County Family attorney said that Petitioner and her three minor children are currently receiving public assistance in the category of Aid to Dependent Children. Having previously received such assistance between June 27, 1978 and January 15, 1979, during the interval between January 15, 1979 and their restoration to the public assistance rolls on December 12, 1979 they were not the recipients of aid in this or apparently in any other category. After their restoration to the relief rolls, in January of 1980 their utility supplier, threatened to discontinue service because of nonpayment. Petitioner sought help from the Nassau County Department of Social Services. The Department agreed to make an advance to forestall a utility shutoff pursuant to 18 NYCRR § 352.7(g)(5) provided Petitioner signed a written request.

A New York Divorce Lawyer said that between January and April of 1980 Petitioner's grants were reduced by virtue of the Department's recovery of the sum thus advanced as well as to recover certain sums paid directly to the utility between May 3, 1978 and September 8, 1978 on behalf of the Petitioner who was at that time receiving public assistance. The reductions ceased in April but in July of 1980 the Department notified Petitioner that it proposed further reductions to recover sums paid directly to utility on her behalf between November 4, 1978 and February 28, 1979 as well as funds advanced for utility expenses between September 5, 1979 and January 7, 1980 and between January 7, 1980 and May 5, 1980.

A Westchester County Lawyer said that the petitioner requested a fair hearing to contest these deductions and the hearing was held on September 29, 1980. Respondent Blum issued her decision on October 16, 1980. She determined that the Nassau County Department of Social Services had erred in its application of 18 NYCRR § 352.7(g)(5) in certain respects, but upheld its recovery of utility advances pursuant to 18 NYCRR § 352.29(e). It remanded the matter to the Department to recompute its proposed recoveries in light of the decision.

A Suffolk County Family Lawyer said that it has justly been observed that the rules and regulations governing public assistance at both the State and Federal levels now rival the Internal Revenue Code in complexity. The linguistic terrain is characterized by euphemisn and neutrality so as to match in blandness the architecture of public housing. Some complexity and tedium may be avoided, however, by narrowly circumscribing the area of inquiry.

Emergency grants are made to applicants for public assistance to prevent utility shutoffs pursuant to 18 NYCRR § 352.7(g)(4). Advances are made to recipients of public assistance for the same purpose pursuant to subdivision (5) of the same subsection of the regulation.

Advances pursuant to (5) are recoverable, but emergency grants pursuant to (4) are not. Respondent Blum found that the Nassau County Department of Social Services had misapplied these sections in calculating the amount to be recovered from Petitioner in that it was seeking to recover sums she received to forestall shutoff pursuant to subdivision (4) while not a recipient of assistance. The matter was therefor remanded to the Department. By virtue of such remand as well as CPLR 7804(g) Petitioner's challenge to the decision after hearing may not be considered.
Petitioner not only contests the manner in which 18 NYCRR § 352.7(g)(5) has been applied, she contends that the Regulation is in conflict with Federal law and should be declared invalid. Such a contention is one which this court may entertain..

Petitioner contends that the State may only recover advances from "income or resources exclusive of the current assistance payment" under applicable Federal law. 18 NYCRR § 352.7(g)(5) which provides for the recovery of advances to forestall utility shutoffs is not so limited.

No single recovery deduction pursuant to 18 NYCRR § 352.7(g)(5) may exceed 10 percent of the household's needs. In the case of multiple recoveries the maximum is 15 percent of the household needs. Petitioner argues the formulaic limitation in 18 NYCRR § 352.7(g)(5) is not adequate compliance with 23 CFR 233.20 and 42 U.S.C.A. § 602.

In short, it appears that a solution to Petitioner's complaint lies within her grasp. She has the power to convert her utility billing to a monthly basis. If she does not do so, she cannot complain when advances to cover bi-monthly bills are recouped in the manner in which they are being recouped. Thus, on this record there appears nothing improper in the implementation of 18 NYCRR § 352.29(e). Upon a showing that monthly billing is unavailable to Petitioner, the court might be compelled to reconsider.

Petitioner's application for relief pursuant to Article 78 is denied. Her action for a declaratory judgment finding 18 NYCRR § 352.7(g)(5) invalid and declaring the implementation by Nassau County of 18 NYCRR § 352.29(e) improper is denied. The denial as to 18 NYCRR § 352.29(e) is without prejudice. The opposing papers submitted by Respondent Blum and entitled a "Cross Motion" are deemed not a request for affirmative relief, but essentially only opposition to the relief sought by Petitioner. Poor person relief is granted.

Here in Stephen Bilkis and Associates, we have Nassau County Family Lawyers who are always ready and available to give you legal advice. For matters of divorcing a marriage, you can also contact our Nassau County Divorce Attorneys.

Daughter Requests Sealing of Court Records

June 26, 2015,

M.D. (hereafter "Daughter") moves this Court by way of notice of motion for leave to reargue this Court's decision dated September 16, 2005, which denied her motion to seal her arrest record and also denied her request on her alternative argument to do so in the interests of justice.
The Court notes that the County Attorney's Office "does not oppose" the instant motion for leave to reargue, even though it did oppose the initial application by the Daughter.

A New York Family Lawyer said that although the affidavit by the Mother adds nothing legally to the Daughter's instant motion for leave to reargue, since the Mother submitted nothing to this Court upon the original motion; nevertheless, the Daughter's instant argument apparently is that this Court overlooked or misapprehended the alleged applicable case law with respect to the original motion. In this, the Daughter submits two cases, which she alleges mandate that the records be sealed in this matter.

A New York Divorce Lawyer said the first case submitted is Schwartz v. Schwartz, 94 Misc 2d 1071. That matter involved a family offense proceeding in which a misdemeanor information commenced a criminal action against the Defendant/Respondent. The matter was then transferred to the Family Court for hearing, and eventually was dismissed for failure of prosecution. The Respondent then moved to seal the records, including the arrest record, and the court granted that request.

A Brooklyn Family Lawyer said the Schwartz court held that the then applicable Criminal Procedure Law section was "triggered" by termination of the criminal proceeding. The court admitted that the CPL is applicable to criminal proceedings only, and a family offense is of course a civil matter. Nevertheless, the court held, in effect, that to decide otherwise would be a blatant disregard of the legislative direction of practical help' which is alluded to in section 811 of the Family Court Act. The District Attorney's office took no position with respect to that motion, and this Court notes that FCA §811 has since been repealed. The Court further admitted that there was "no case in point," i.e. no authority for its reasoning.

A Bronx Family Lawyer said the second case submitted by the Daughter is In the Matter of Tony W., 91 Misc 2d 700. That case involved a juvenile delinquency matter in which the proceeding terminated in the Respondent's favor and the Respondent then moved to seal his arrest record pursuant to Criminal Procedure Law § 160.50(1). The court held that the records should be sealed; however, and in accordance with the CPL, it granted Corporation Counsel 20 days to submit a motion opposing the sealing and if the motion were not made, then the sealing would be granted.

It should be noted that the Tony W. case was decided in 1977, prior to the enactment of Family Court Act § 375.2, which specifically allows a Respondent to move to seal after a finding in his favor. Therefore, the legislation necessary to move to seal a juvenile delinquency matter, was not in existence in 1977, and the Tony W. Court found it necessary to apply the CPL to that matter. Even assuming that the Tony W. Court was correct in its decision, the fact that as of 1982 the Family Court Act specifically permitted a motion to seal after a finding in Respondent's favor, makes the Tony W. argument academic.

This Court has the highest regard for its sister Family Courts in Suffolk County and New York County. However, the two authorities cited by the Daughter are not binding upon this Court. Neither matter was appealed nor does the Daughter submit no authority whatsoever from any higher court.

As this Court stated in its decision of September 16, 2005, the Family Court is a court of limited jurisdiction; it may exercise only those powers specifically granted to it by the State Constitution as more fully specified in the Family Court Act.

This Court's prior decision further reviewed CPL §160.50(1) and CPL §160.50(3)(j). As set forth in those two statutory sections, there are conditions precedents which must be complied with in a criminal case, before a motion is submitted or the sealing of the records themselves can be accomplished. In fact, the Daughter herself recognizes this, which also discusses CPL §160.50(3)(i)). There is no proof whatsoever that any condition precedent has been accomplished. However, this is not to say that even if the condition precedent were accomplished, that this Court would rule in the Daughter's favor.

As set forth in this Court's decision of September 16, 2005, it was this Court's firm belief that it was without jurisdiction to entertain the Daughter's application to seal the records. This Court greatly sympathizes with the Daughter in her current efforts to "clear" her record, which record is apparently a severe impediment to her securing an advancement in her career as a social worker for the State of New York. However, this Court cannot fashion what should be a legislative remedy, where no such remedy currently exists.

The matter at bar is no different from Aloi v. Aloi, decided by this Court on October 15, 2003. In that matter, a family offense proceeding was settled on consent, with the order to be in effect for a period of one year. Subsequent to the expiration of that order, the Respondent moved for a return of his weapons which had been previously seized by the Sheriff, pursuant to Court order, at the commencement of the proceeding. This Court denied the Respondent's application, for a lack of jurisdiction, and that order was affirmed.

The Respondent then proceeded in the Supreme Court against the Nassau County Sheriff's Department, in accordance with the direction of the Appellate Division as cited above. In her decision, the Justice granted the Respondent's petition for return of the firearms, but reviewed the applicable law, and stated strongly that, in her opinion, the Family Court should in fact have jurisdiction over such a matter. She stated that "it appears to be a legislative oversight in not providing the Family Court judge with continued jurisdiction" over such a matter. She concluded her decision as follows: "Accordingly, this Court strongly urges legislation to amend section 842-a of the Family Court Act to provide Family Court judges with not only the authority to seize firearms pursuant to an order of protection but also the discretion to determine when or if said firearms should be returned."

Lastly, in a recent matrimonial action where the Plaintiff attempted to prove grounds for matrimonial fault, based upon a new theory not addressed by statute, the Court refused to "step into a legislative void and craft new or alternative grounds for divorce."

Although this Court greatly sympathizes with the Daughter and her current predicament, it cannot grant the relief she seeks, as there is no statute applicable to this situation before this Court, and this Court is therefore without jurisdiction to decide such a motion in her favor.
Litigation may affect social and economic standing of the parties thereto. However, in some cases, remedies available under the law may in effect obliterate these effects through the proper sealing of ones record and by keeping it confidential.

In case you find yourself within the confines of litigation dilemma, consult the Nassau County Family Attorneys and Nassau County Order of Protection Lawyers of Stephen Bilkis & Associates.

Court Rules on Case Regarding Child Neglect

June 25, 2015,

A New York Family Lawyer said in a proceeding pursuant to article 6 of the Family Court Act, to adjudicate SX a permanently neglected child, and to commit him to the custody and guardianship of the Commissioner of the Nassau County Department of Social Services (DSS), the natural mother, MY, appeals from an order of disposition of the Family Court, Nassau County, entered September 16, 1983, which directed that the guardianship and custody of SX be committed to the Commissioner of the DSS on condition that the child be adopted by Mr. and Mrs. Z.

A New York Divorce Lawyer said the subject of this proceeding is SX, born August 30, 1970. SX has a brother, GX, born December 4, 1967, a sister, JX, born September 20, 1971, a stepbrother, W, born May 30, 1974, and a stepsister, E, born June 26, 1975. SX's mother is MX, who, after being divorced from SX;s father, remarried and became known as MY (the appellant).

The affidavit of Mrs. N of November 24, 1982 in support of the permanent neglect petition instituting this proceeding, states that in January, 1976, MY left SX and his siblings with their father, departed for Florida, and left no forwarding address. The father, unable to cope with the children, deposited them with the police.

A Queens Family Lawyer said that during the same month, January, 1976, petitions alleging neglect were filed by the DSS against SX's mother, MY, on behalf of the five children.
The neglect petition of 1976 filed on behalf of SX charged, inter alia, that he was subjected to heated verbal arguments between his natural parents, that he had been struck with a belt and pounded against the wall by his stepfather, that his parents could not control SX's temper, and that MY left the State without a formal plan for the children's supervision.

All of the children were found to be neglected, as defined by section 1012 of the Family Court Act, and, on September 9, 1976, all were placed in custody of the DSS. By 1981, all the children except SX had been returned to MY, who was again residing in New York.

A Long Island Family Lawyer said that from 1976, when he was less than six years old, SX lived in foster homes. In 1978, due to behavioral problems, he was placed in residence at St. Christopher's Home in Sea Cliff. Coincidentally, his brother, Gene was also in residence at St. Christopher's. While at the home, the "Z" family became interested in SX, and on
June 22, 1979, he was placed with the Z family, where he resides to date. These foster parents want to adopt SX.

Since 1979, placement of SX with the "Z" family was extended annually on consent of the appellant. Revelations of suicidal tendencies and the deterioration and regressive condition of SX were raised, thereby causing accelerated procedures regarding SX's placement. On November 26, 1982, the DSS filed the petition instituting the present proceeding to adjudicate SX a permanently neglected child and to commit the guardianship and custody of SX to the Commissioner of the DSS pursuant to section 384-b of the Social Services Law.

After three days of hearings, the permanent neglect proceeding was completed on December 13, 1982. On April 6, 1983, the court rendered a decision on the fact-finding hearing and granted the petition for commitment and guardianship and custody pursuant to section 384-b of the Social Services Law.

On her appeal from the order of disposition, SX's mother advances four legal points, viz.: (1) service in this proceeding was not effected upon her in compliance with section 617 of the Family Court Act, i.e., failure to serve the summons 20 days in advance of the hearing, thereby depriving the Family Court of both subject matter and in personam jurisdiction; (2) the court refused to grant her an adjournment to prepare for trial and its insistence on proceeding on only six days notice deprived her of due process and the effective assistance of counsel; (3) the court did not use the proper legal standard in its decision granting the petition, i.e., it applied to the fact-finding determination a standard appropriate to the dispositional hearing, viz., the best interest of the child; and (4) respondent failed to establish by clear and convincing proof that SX was a permanently neglected child.

In reviewing the arguments made on appeal, we find no basis for disturbing the order under review.

Appellant's third and fourth points are clearly without merit because the record indicates by clear and convincing evidence that she failed to meet the planning requirement of section 384-b of the Social Services Law, and that SX is a permanently neglected child within the meaning of paragraph (a) of subdivision 7 of that section.

We have considered the circumstances under which this petition has been brought and find that the "best interests" of the child will be served by granting the petition.

Similarly, we find no merit to appellant's first and second points pertaining to jurisdiction and appellant's request for an adjournment. Those contentions, however, warrant some further review of the record and some comment.

The court noted that the short notice contention raised by counsel for the mother should be weighed against "a life that could be terminated" and offered to subpoena any witness "to come back" if the mother's attorney wanted to cross-examine anybody. The court added that commencing this proceeding and taking testimony had afforded SX the security of knowing that the legal proceedings and the uncertainty generated by them are going to come to an end. It was also noted on the record that the Trial Judge had been on this case since 1976.

In view of the evidence that the child might have died before a return date of "at least 20 days" and any subsequent extensions of time for appearance and answer requested by the mother, it is manifest that--under the circumstances of the case--the court might well have been derelict in its duty if it had relied upon the time frame of that statute, as appellant's counsel now argues that it should have done.

In effect, there was no summons statute covering the extraordinary exigency faced by the court, in either the Family Court Act, court rules, or the CPLR. Under the circumstances, the issue was one of due process. When the various articles of the Family Court Act are examined, it may be seen that the notice requirement varies with the exigency involved in the nature of the proceeding. Thus, in juvenile delinquency, PINS, family offense and child protective proceedings, the service of the summons and petition shall be made at least 24 hours before the time stated for appearance.

The record also clearly indicates that appellant initially sought only a brief adjournment and that the court was willing to afford appellant time--but only on condition that the petitioner commences presenting her evidence to allay the child's fears. The record also shows that appellant waived any jurisdictional objections at the outset of the hearing and only raised the issue of jurisdiction after seven witnesses had testified.

There appears to have been a complete indifference by the appellant to the plight of her child; rather her counsel chose to do nothing except to place on the record a technical objection that might form the basis for reversal on a later appeal, and which would unnecessarily cause the continuance of the legal uncertainty that led to the suicidal tendencies expressed by the child. Accordingly, the order granting the petition for commitment and guardianship and custody pursuant to section 384-b of the Social Services Law is hereby affirmed.

In most of abuse and/or neglect proceedings, the best interest of the child is paramount and this interest is properly protected by our courts. Because of the vulnerability of every child to be abused and neglected by people responsible for their care and protection, the law has been very vigilant in prosecuting for these cases.

The Stephen Bilkis & Associates through its Nassau County Family Attorneys and Nassau County Order of Protection Lawyers can assist you in rendering justice for these little children. Call us now.

Plaintiffs Request Property Assessment

June 24, 2015,

A New York Family Lawyer said that based on the papers filed by the parties, it is ordered that the applications are decided as follows: Petitioners bring this proceeding (Seq. No. 01), pursuant to Article 78 of the Civil Practice Law and Rules, for a judgment vacating one hundred thirty-one (131) decisions made by Small Claims Assessment Review Hearing Officers on the ground that none of the decisions provide any explanation or rationale for the adoption of the .25% Residential Assessment Ratio ("Ratio") propounded by the Respondents (County Assessor and County Assessment Review Commission), without reference to the report of an economist which they submitted with their petitions, showing that the correct ratio is .232% or less.

Respondents cross-move (Seq. No. 02) to dismiss the petitions, or in the alternative, for a severance of the individual claims and a direction that petitioners purchase individual index numbers and file separate petitions.

A New York Divorce Lawyer said that challenges to real property assessments are big business in Nassau County. By most accounts, tax certiorari proceedings in Nassau result in refunds in excess of $100,000,000.00 annually. As of 2009, the Nassau County Assessor placed the figure at approximately $90,000,000.00, 83% of which involved commercial properties. Nassau County and New York City are the only two special assessing districts in New York. This enables Nassau County to maintain separate classes of property, with different tax rates and levels of assessment. This matter involves challenges to the assessments of Class I properties, which include one, two and three-family homes. For the 2010-2011 tax year approximately 33,600 owners filed complaints on their real property assessments. As one can readily imagine, the resolution of this volume of complaints is a daunting task.

In an effort to provide an expeditious, inexpensive and informal venue for the resolution of challenges to assessments on Class I properties, the legislature enacted Title 1-A to Article 7 of the Real Property Tax Law. The procedures for the conduct of these small claim hearings have been laid out in detail.

Petitioners in this action assert that the hearing officer failed to consider their evidence of unequal assessment. That term is defined as follows:

(a) an entry on an assessment roll of the assessed valuation of real property improved by a one, two or three family residential structure which is made at a higher proportion of full value than assessed valuation of other residential real property on the same roll; or

(b) an entry on an assessment roll of the assessed valuation of real property which is made at a higher proportion of full value than the assessed valuation of all real property on the same roll.
Hearing officers are required to make a decision in writing with respect to the Small Claims Assessment Review within thirty days after the conclusion of the hearing. The decision of the hearing officer shall state the findings of fact and the evidence upon which it is based. Such decisions shall be attached to and made part of the petition for review and shall be dated and signed. The election to file a Small Claims Assessment Review petition is irrevocable and constitutes a waiver of the right to commence a review proceeding under Title I of Article 7. Judicial review is available pursuant to Article 78 of the Civil Practice Law and Rules.

A Nassau County Family Lawyer said the statutory scheme sets out a methodology for the development of the residential assessment ratio. It provides in pertinent part as follows:

1. (a) For the purposes of this title, sixty days prior to the date for the filing of the tentative assessment roll of an assessing unit, the commissioner shall determine the residential assessment ratio for such assessing unit. The residential assessment ratio shall be equal to the level of assessment of residential property in the assessing unit as determined in the market value survey used or to be used to calculate the state equalization rate for that assessment roll pursuant to article twelve of this chapter, subject to the provisions of paragraph (b) of this subdivision.

b) The commissioner shall increase or decrease the residential assessment ratio to account for a change in level of assessment in the total assessed value of residential real property or, if not available, of all taxable real property. For purposes of this section, "change in level of assessment" has the meaning set forth in section twelve hundred twenty of this chapter except that a change in level of assessment shall be determined with reference only to residential real property if the necessary information is available.

A Staten Island Family Lawyer said the petitioners now seek a review of the various hearing officers' adoption of the ratio propounded by the New York State Office of Real Property Services and adopted by Nassau County.

When a hearing officer's determination is contested, the court's role is limited to ascertaining whether that determination has a rational basis that is, whether it is not affected by an error of law or not arbitrary and capricious. In Sass v. Town of Brookhaven, 73 A.D.3d 785, 900 N.Y.S.2d 383 (2d Dept. 2010), the Court concluded that the hearing officer's denial of the homeowner's claim for a disability exemption was not an error of law, and not arbitrary and capricious, where the homeowner refused to provide documentation to substantiate her claim. It further concluded that the determination to deny petitioner's claim for an assessment reduction on the ground that the assessment did not reflect a true market value was arbitrary and capricious where the petitioner submitted sales figures from six comparable properties tending to establish that the assessment was excessive or unequal within the meaning of RPTL §§ 729 (2) or (4), and the Town submitted no comparable sales in opposition.

The state residential assessment ratio, as developed in accordance with RPTL § 738, is the product of a mandated analysis of sales and assessments of properties within the assessing district. It is entitled to consideration by the hearing officer and reliance upon it cannot be classified as a violation of law or as arbitrary and capricious. In the instant matter, while the hearing officers did not, in other than thirty (30) instances, even make reference to the economic studies provided, this does not mean that they failed to consider them. The procedures for the review of small claims specifically states that "for the purpose of this section, the equalized value of the property shall equal the assessed value of the property divided by the most recent equalization rate or, in the case of a special assessing unit, the most recent class one ratio, when established." It is the established Class I ratio upon which they relied in the instant matters.
Petitioners have chosen a forum which intentionally provides for limited judicial review, with a heightened standard requiring unlawfulness or lack of rational basis. Others have not. The petitioners in the Halpern v. The Board of Assessors and Assessment, Assessment Review Commission of the County of Nassau action cited below have proceeded under Article I of Title 7 and will be entitled to a determination based upon the preponderance of the evidence. The petitioners in the instant proceeding are not entitled to a decision on that basis.

Petitioners' application (Seq. No. 01) to vacate the determination of the hearing officers is hereby DENIED. Respondents' cross-motion (Seq. No. 02) to dismiss the petition is hereby GRANTED.
In matters affecting and dealing with the assessment of real property constituting a family home, you can seek the assistance of Nassau County Family Attorneys of Stephen Bilkis & Associates.
For other family related issues like divorce and visitation rights and custody of a child our Nassau County Family Lawyers and Nassau County Order of Protection Attorneys can stand by you and fight for your rights. Call us now.


Court Discusses Domestic Violence Charges

June 23, 2015,

A New York Family Lawyer said this case involves domestic violence and a motion to dismiss the indictment and an order transferring all the proceedings herein from the County Court to the Family Court of Nassau County was raised by the defendant. Defendant is charged with assault, second degree. The particular act involved herein arose as a result of an altercation between defendant and his wife during which the defendant is charged with stabbing his wife with a knife. The defendant urges this Court to transfer the entire proceedings to the Family Court inasmuch as the alleged assault arose during a family dispute.

A New York Divorce Lawyer said that they are presented with the problem of whether the Family Court, in the case of a felonious assault inflicted by one spouse upon another, is the sole and exclusive forum to the exclusion of the County Court. The act complained of for which the defendant stands indicted is clearly a crime against the State if proven, beyond a reasonable doubt, to the satisfaction of a jury (Penal Law, § 242).

A Westchester Family Lawyer said that equally, it is within the power and in fact it is the duty of the Grand Jury to inquire into all crimes committed, present them to the Court which must try and determine all such crimes. Such mandate and jurisdiction of the County Court is rooted in Article 6, Section 11(a) of the New York State Constitution.

The legislature has designated the Family Court to have 'exclusive original' jurisdiction over assaults between spouses. The constitutional grant and subsequent legislative enactment upon which it must stand did not, in establishing the Family Court, limit or restrict the jurisdiction and powers of the Grand Jury to indict or the County Court to try such indictments. In fact, Article 6, Section 19(b) of the New York State Constitution states that, the county court may transfer any action or proceeding, except a criminal action or proceeding involving a felony prosecuted by indictment.

A Suffolk County Family Lawyer said it is the finding of this Court that there continues to exist jurisdiction in the County Court in the case of felonious assaults between spouses where the Court is proceeding by indictment.

The constitutional enactments [Article 6, § 13(a), (b)] notwithstanding the seemingly sweeping legislative wording of 'exclusive original' in the Family Court Act confers a jurisdiction which did not heretofore exist but has not and was not intended to limit the general jurisdiction of the Grand Jury or the County Court over indictable crimes. In this regard, it may be noted that Courts of Special Session are given 'exclusive jurisdiction' over certain minor crimes. The power of such Courts to proceed is lost upon indictment. There, as in the case at bar, the words exclusive jurisdiction were not intended to limit the general jurisdiction of the Grand Jury to indict or the County Court to try such indictments. Recognizing that permissive jurisdiction in certain assaults attach to the Family Court, We must consider whether the within matter should be transferred. The stated purpose as pertinent hereto in establishing the Family Court is found in Section 811 of the Family Court Act which states that:

'In the past, wives and other members of the family who suffered from disorderly conduct or assaults by other members of the family or household were compelled to bring a 'criminal charge' to invoke the jurisdiction of a court. Their purpose, with few exceptions, was not to secure a criminal conviction and punishment, but practical help.

'The family court is better equipped to render such help, and the purpose of this article is to create a civil proceeding for dealing with such instances of disorderly conduct and assaults. It authorizes the family court to enter orders of protection and support and contemplates conciliation procedures. If the family court concludes that these processes are inappropriate in a particular case, it is authorized to transfer the proceeding to an appropriate criminal court.'
The stated purpose is to provide a civil proceeding and to extend help in dealing with family altercations which properly are correctable by Orders of Protection or Conciliation proceedings and which do not lend themselves to criminal court treatment (see, also, Joint Legis. Committee Report on Court Reorganization [1962], Family Ct.Act, p. 2, McKinney Session Laws, 1962, p. 3430). In light of such expressed legislative intent and our previous discussion, we do not find the directive 'shall be transferred' as mandatory but rather permissive in the case of felonious assaults.

Can it be said that where a defendant-spouse has perpetrated a felonious assault that the matter is one where the preservation of the family tranquility is paramount and the matter should not be dealt with criminally? We think not.

Also, of course, are the acts set forth in Section 242 of the Penal Law of this State Dealing with assault in the second degree. Acts of this nature, even when committed between members of the same household or between spouses are not acts which should go unpunished. Even more important than punishment, however, is whether or not a perpetrator of such an act should be permitted to continue to endanger society. Above all, these acts are crimes against the People of the State of New York and Society must be considered as well as the 'family tranquility.'
Finally, this Court must take note of the recent decision in the case of People v. DeJesus, 21 A.D.2d 236, 250 N.Y.S.2d 317. The learned court rendering that decision takes substantial note of subdivision 'b' of Article 6, Section 13, of the New York State Constitution and, in particular, its opening phrase, to wit:

'The family court shall have such jurisdiction over the following classes of actions and proceedings which shall be originated in such family court in the manner provided by law.'
The Court continues to cite the Constitution as follows:

'§7[c] If the legislature shall create new classes of actions and proceedings, the supreme Court shall have jurisdiction over such classes of actions and proceedings, but the legislature may provide that another court or other courts shall also have jurisdiction and that actions and proceedings of such classes may be originated in such other court or courts.'

This Court respectfully differs with the interpretation given to subdivision (b) quoted above as requiring origination of the subject matter of this case in the Family Court. The opening sentence is no different than that which deals with County Court or with Civil Court of the City of New York. It cannot be urged that the interpretation of the language used in each of the sections referred to should be different depending upon the court to which it applies. It is the opinion of this Court that the phrase in question must be interpreted to mean that the court 'shall have such jurisdiction' over those classes of actions and proceedings which are in fact originated in said court.

Based upon all of the foregoing, it is the opinion of this Court that this motion must be denied.
Jurisdiction of courts is one of the subject matter that the Stephen Bilkis & Associates took extraordinary cognizant of, as it can affect the whole proceeding if the court trying the case does not have power to adjudicate.

In family related issues which concerns the jurisdiction of courts, our Nassau County Family Lawyers and Nassau County Order of Protection Attorneys can give you the right answers based on the prevailing case laws decided in this state. Call us for your inquiries and we will give you legal advice free of charge.

Court Reviews Condemnation Proceeding

June 22, 2015,

A New York Family Lawyer said this is a condemnation proceeding in which the Village of Garden City sought to acquire title in fee to certain property within the village for a parking field. The property to be acquired consists of 23 parcels all of which were heretofore zoned by the village for residential purposes. The evidence showed that a change in the zoning of property in the vicinity of the subject parcels had been under study since 1951 when the trustees of the village engaged a zoning expert to confer on a general revision of the ordinance. An advisory committee prepared and submitted to the trustees a draft of a proposed new zoning ordinance. This was the subject of a public hearing on January 25, 1953. A map delineating the proposed zone changes was dated and filed in the Nassau County Clerk's office on March 20, 1953.
On June 25, 1953, a hearing was heard with respect to the proposed revision of the zoning ordinance before the Board of Trustees and the hearing was adjourned to July 2, 1953. On November 30, 1953, the report of the advisory committee was printed, and a memorandum was submitted by such committee to the Board of Trustees in which it was recommended that several of the parcels (D-1, D-2, and D-3, Washington Avenue frontage) be changed on the proposed map from C-O to R-6 Zone. The C-O Zone permitted the use of commercial offices on the property in that zone. In the R-6 Zone the property was restricted to one-family residences. On February 18, 1954, this recommendation was approved and adopted by the village trustees over the opposition of some of the property owners. The public hearing in relation to this condemnation proceeding was had on May 27, 1954.

A New York Divorce Lawyer said that one of the main issues in this condemnation proceeding was the contention on the part of some of the claimants that most of the property in question was not properly zoned, particularly with reference to the property facing on Washington Avenue in said village.

The claimants, the claimants' experts, and counsel for the claimants raised the issue that some of the various parcels sought to be acquired were not properly zoned because of their location and the surrounding properties, the traffic on the street, the proximity of the gasoline service station at the corner of Washington Avenue and Old Country Road, and also the proximity to the other commercial office buildings on Old Country Road.

A Westchester Family Lawyer said that witnesses generally stated that the best use of the property facing on Washington Avenue was for commercial office buildings. As to other parcels shown on the condemnation map, there was testimony from real estate expert witnesses that the best use of the property was for parking field purposes, rather than for residential uses, especially those parcels contiguous or close to the commercial office buildings which would need considerable parking facilities.

A Suffolk Family Lawyer said that as to parcel D-1, the witness for the claimant testified that if the subject property were zoned for commercial office buildings its value would be $42,785, but for residential purposes only the parcel would be worth only $2,500. If, however, a professional man could have an office in the dwelling house, then the property would be worth $16,140. The witness for the village testified that he valued the said parcel D-1 at $4,100. Similar instances could be given as to other parcels on the damage map.

The question of law that arises as respects the Washington Avenue frontage is whether the expert witnesses in deciding upon the values could consider as a factor therein the reasonable probability that the zoning might be changed or whether they were restricted only to the value under the provisions of the zoning ordinance, even though the property was unfit for residential purposes and the highest and best use of it was for commercial office buildings, and in some cases outside the Washington Avenue frontage for private parking fields in connection with the office buildings on Old Country Road. Furthermore, the discrepancy in value between the property used for commercial office purposes and the property used for residential purposes was so great that the continuance of the property in a residential zone would amount to confiscation, and in all probability in a proper case if the ordinance was attacked the Court would find confiscation.

Since the valuation in eminent domain, is a judicial question based upon equitable principles, the courts sitting in judgment in determining the compensation endeavor to weight the justice and fairness between the condemnor and the condemnee, and attempt to arrive at a valuation which they deem to be fair and equitable to both parties.

Fair market value of property actually taken as of the date of appropriation resides in an estimate and a determination of what is the fair, economic, just and equitable value under normal conditions. All elements of value that inhere in the property should be considered.

Where there is a possibility or probability that the zoning restriction may in the future be repealed or amended so as to permit the use in question, such likelihood may be considered if the prospect of such repeal or amendment is sufficiently likely to have an appreciable influence upon present market value. It follows from the foregoing that such possible change in the zoning regulations must not be remote or speculative.

The owner of lands being entitled to their fair market value for the most profitable use for which the property is available, this use cannot be cut down because the condemnor is in a position to refuse a consent necessary to make available the lands for such use, and does so refuse because of the effect upon the price in a contemplated condemnation. Each owner, so long as he is holding the property, is entitled to be considered in the same position as if his lands were not to be sought in condemnation.

It is generally held that although an ordinance may prohibit the use of the property for certain purposes at the time of condemnation, yet if there is a reasonable probability that the ordinance may be changed or an exception made, the value for that purpose as affected by the existing ordinance may be considered.

The compensation awarded when land is taken by eminent domain is the market value of the land for any use to which it is adapted and for which it is available. It is also said: 'When however a particular use of property is prohibited or restricted by law, but there is a reasonable probability that the prohibition or restriction will be modified or removed in the near future, the effect of such probability upon the value of the property may be taken into consideration.’

The prevailing opinion held that there was nothing in the record tending to show any reasonable probability that the prohibition or restriction would be modified or removed in the near future. The Court said, 'Neither industry nor business has been invading the residential development in the involved area'.

Referring to the above quotation taken from the prevailing opinion in the case last cited (citation omitted), that 'Neither industry nor business has been invading the residential development in the involved area', it must be kept in mind that in the case at bar business has invaded the area in question to a marked degree, thus affording grounds for a reasonable probability that the prohibition or restriction would be modified or removed in the near future.

In his report dated June 9, 1953, in the Matter of Acquiring Title by Union Free School District No. 23, Town of Hempstead, Nassau County, N. Y., the undersigned Official Referee wrote:
‘The objector has misconceived the determination of the official referee heretofore made. In his determination the official referee has given full and due consideration to the fact that the subject land presently is restricted in accordance with the zoning laws of the Town of Hempstead. However, giving full force and effect to this restriction, the official referee in arriving at a determination of the market value of the land in question is not restricted to a valuation predicated on the narrow use of the property permitted by a zoning ordinance, but may take into consideration what any prospective purchaser might consider, viz.--the uses for which the property is otherwise best suited, for which it is most valuable, and any reasonable probability whether such prohibition or restriction would be modified or removed in the near future.’
‘The constitutional guarantee of reasonable compensation upon a taking for public use would become of little or no importance if the compensation is always restricted to the basis of only a use of property permitted by a zoning ordinance. Such an ordinance may be repealed or amended after the property is acquired. If a municipality could enact a zoning ordinance and later determine to acquire property covered by such ordinance by condemnation and have the right to completely exclude in such condemnation proceeding consideration of any use to which the property might be put except such as are specifically permitted by the ordinance in question, the owner would lose the constitutional guarantee of reasonable compensation upon a taking for public use if there existed a reasonable probability that the restrictions might soon be modified.’
‘Prospective purchasers of the property would not be so limited in their appraisal or valuation, but would, no doubt, give consideration to the influence upon the value of the land in question of uses to which the land was particularly adapted by reason of its character, its location, its surroundings, taken in connection with any reasonable probability of the modification of such restrictions, even though a zoning ordinance presently proscribed or limited such uses. In arriving at the market value of premises, a court should take into consideration those matters which might affect prospective purchasers in their valuation of the land in question, because it is the attitude of these prospective purchasers which in the end makes market value.’

Without making any attack on the ordinance in question it is the opinion of the Official Referee that there is in this case evidence from which the Court is able to find that there is more than a reasonable probability that this ordinance would be changed, especially in regard to the property fronting on Washington Avenue, and that, therefore, the real estate experts as to the various parcels had the right to consider the reasonable probability of such change as a factor in fixing their valuations. The Official Referee is of the opinion that under the facts in the case at bar the valuation of the various damage parcels given by the expert for the village, being predicated in every instance on the strait-jacket influence of the present zoning ordinance, is of little assistance to the Official Referee in fixing the valuation of any of the damage parcels.

Matters relating to the proper assessment of real property are within the province of experts in real property valuation. However, when the property in issue pertains to the constitution of family home or its conversion to a business area, questions of laws may be properly addressed by a Nassau County Family Lawyer.

If you are dealing with similar issues as discussed above, seek the assistance of Nassau County Family Attorneys of Stephen Bilkis & Associates.

Plaintiff Seeks a Divorce on the Grounds of Inhumane Treatment

May 8, 2015,

A New York Family Lawyer said this action seeking a divorce on the ground of cruel and inhuman treatment, and ancillary relief, was commenced on or about June 10, 2003. By order dated December 23, 2003, both parties' applications for temporary custody were denied and an injunction was issued prohibiting either party from taking the children out of the United States. The plaintiff (Wife) was granted omnibus pendente lite financial relief pursuant to an order dated February 24, 2004. The parties entered into a written "parenting-time" stipulation on February 8, 2005. The trial of the action commenced on February 1, 2005. On that date, an inquest was conducted on grounds and the plaintiff was granted a judgment of divorce on the ground of constructive abandonment. Entry of the judgment of divorce was stayed pending the determination, after trial, of ancillary issues.

At the conclusion of the trial, the Court reserved decision, pending receipt of post-trial memoranda and summations which were thereafter served and filed by both plaintiff's counsel, defendant's counsel and the law guardian.

Background
A New York Divorce Lawyer said the parties met in Poland and were married there in a religious ceremony on September 10, 1994, after a civil ceremony conducted in April 1994. There are three infant issue of the marriage, P born December 11, 1996; C born May 25, 1999; and V born September 15, 2000. The plaintiff is 32 and the defendant is 38 years old. The parties and their children are all in good health. The plaintiff earned a bachelor's degree in economics in 1993 and a master of business administration in international economics in 1994 in Poland, prior to the marriage. She first came to the United States after she married the defendant. The defendant has dual citizenship in Poland and the United States.

A Westchester Family Lawyer said at the time of the trial, both parties, their three children, and the defendant's parents were residing in the marital residence in M. The plaintiff resided on the second floor and the defendant and his parents resided on the first floor. Pursuant to the "parenting-time" stipulation dated February 8, 2005, the plaintiff "parents" the children Tuesday through Saturday and the defendant "parents" them Saturday through Tuesday. The stipulation requires that the children sleep in their upstairs bedroom, establishes detailed bedtimes for the children, affords the grandparents five minutes with the children before bedtime to say goodnight, and prohibits the removal of the children's personalty from the marital residence.

Testimony
A Suffolk County Family Lawyer said that the plaintiff testified that the defendant has been physically and emotionally abusive to her throughout the marriage; he physically assaulted her on their honeymoon cruise, when, as they prepared to have lunch, he insisted that they "have sex" and when she resisted, he struck her in the head and various other parts of her body until "he got what he wanted;" he told her repeatedly throughout the marriage that she was "not good enough for him" and was not capable of performing activities pleasing to him.

According to the plaintiff, she was the primary caretaker of the children throughout the marriage. She cared for the children while defendant was frequently absent from the home on work related travel or vacation; she also cleaned the house and cooked meals; in addition to his absences from home for work related reasons, the defendant often took vacations on his own, including trips in the year 2000 to Aspen Colorado, San Diego California, as well as to Costa Rica for a wedding where he stayed for two or three weeks, and a number of trips to Poland to visit family and to check on a house he owned there before their marriage

The plaintiff asserts that the defendant is undermining her relationship with the children. She testified that starting sometime in 2003, her relationship with her son P had deteriorated as a result of the defendant's influence.

The defendant denied plaintiff's allegations that he was a controlling, abusive spouse. The defendant conceded he traveled extensively at times during the marriage.

Custody
Each party seeks sole legal and physical custody of the children. The plaintiff attempted at trial to portray herself as a loving and devoted parent, who has been the primary caretaker, and enjoys a close and constructive relationship with the children. The testimony elicited during the course of the trial did establish that she has historically been the primary care giver for the children. Trial testimony, however, also revealed that she has repeatedly exercised profoundly poor judgment, including shoplifting from a department store at a time when she was accompanied by the children, engaging in a sexual liaison at the marital abode while the children were in the home; leaving the parties' sons in a bathtub without proper supervision; and meeting with a paramour in the presence of the children. The plaintiff contends, however, that she has been the victim of abuse by the defendant throughout the marriage; that her inappropriate behavior is the result of such abuse; that custody of the children should not be awarded to a perpetrator of domestic violence; and that the defendant has been an absent parent, largely uninvolved in the children's upbringing.

For any court considering questions of child custody, the standard by which we are guided is to make every effort to determine what is for the best interest of the child, and what will best promote its welfare and happiness.

Here, the defendant has not historically been the children's primary caretaker. He has, however, historically had child care assistance from his parents, who have resided with the children and cared for them since the children's births. The defendant has not persuaded the Court that he has customarily subjugated his own needs to the best interests of the children. Further, it is clear that throughout the marriage the defendant has exercised total dominion over the family's finances and has not viewed or treated the plaintiff as an equal partner in their marriage. Nevertheless, upon all the facts and circumstances set forth herein above, the Court finds that the best interests of the children will be served by awarding legal custody to the defendant.
Accordingly, the defendant is awarded legal custody of the children. The parties shall, however, have equal "parenting-time" with the children as will be addressed, in detail, herein below.

Parenting Time
Once the plaintiff relocates away from the marital residence, she and the defendant shall have equal parenting time with the children. The children shall spend one week with the plaintiff and one week with the defendant unless the parties agree to an alternative shared parenting schedule. In the event the defendant elects to remain in the marital residence, the children shall attend school in that district and the plaintiff shall obtain housing in a proximity to the marital residence such that the children can be transported to and from school generally in less than 20 minutes. In the event the defendant elects to sell the marital residence prior to the plaintiff's vacatur, each party shall relocate not more than a 20 minute ride from the marital residence, unless the parties agree to both relocate to a location where each shall obtain housing not more than a 20 minute ride from the children's schools. In the event the defendant sells the marital residence after the plaintiff has vacated the marital home and established a residence in compliance with the terms of this decision and order, he shall relocate not more than a 20 minute ride from the children's school, unless the parties agree otherwise and upon such agreement both relocate to premises not more than a 20 minute ride from the children's schools.

Maintenance
Here, the plaintiff was earning $293.00 bi-weekly working part time. In 1999, she was earning $50,000.00 working in the travel industry for American Express. She speaks English and Polish and her resume indicates she has some proficiency in French. She is computer literate and has knowledge of certain computer programs keyed to the travel industry. The Court finds that the plaintiff has the present ability to earn $25,000.00 a year. In view of her work history, her education, and her other skills, the Court finds that she has the ability to resume full time employment earning $50,000.00 a year, with 24 months of the date of this decision and order.
The defendant was earning $90,000.00 in 1999. He earned approximately $ 150,000.00 in 2004. The Court imputes income to the defendant of $125,000.00 a year.

Plaintiff requires maintenance of $2000.00 a month from the time she vacates the marital residence until 24 months from the date of this decision and order. Accordingly, commencing on the date plaintiff vacates the marital residence, the defendant shall pay her maintenance of $2000.00 a month until the death of either party, the plaintiff's remarriage or the expiration of 24 months from the date of this decision and order whichever occurs soonest.

Child Support
The parties' enjoyed a comfortable standard of living during the marriage. They resided in an affluent community and traveled extensively during the marriage. The defendant's ability to earn substantially exceeds the plaintiff's ability to earn. The defendant's parents reside in the marital residence, have the use and enjoyment thereof, and are, or should be making some financial contribution to the carrying charges and maintenance of the premises. In view of all the above and upon consideration of the reasonable needs of the children, the Court finds that it would be just and equitable to apply the statutory percentage to total combined parental income.

Accordingly, upon the plaintiff's vacatur of the marital residence, the defendant shall pay the plaintiff child support of $2256.00 a month. Said award shall be adjusted upon the termination of maintenance to reflect the defendant's gross imputed income of $125,000.00 and the plaintiff's gross imputed income, at the time maintenance is scheduled to terminate, of $50,000.00. At the request of either party, payment shall be through the Nassau County Support Collection Unit.

Child Care Expenses
Pursuant to the provisions of DRL 240(1-b)(c)(4), the Court is to consider child care expenses. The parties do not incur child care expenses at the present time. As the defendant resides with his parents, it is not likely he will incur child care expenses in the future. The plaintiff shall also avail herself of any offer by the defendants' parents to provide child care in the future. In the event the defendant's parents are unable or unwilling to provide child care, the plaintiff shall pay 20% and the defendant shall pay 80% of child care expenses incurred by both parties to enable them to pursue employment and/or education.

Health Insurance
Defendant is directed to maintain medical, dental and hospital insurance coverage for the issue of the marriage commensurate with the coverage in effect as of December 1, 2004. He shall provide such coverage for the plaintiff until entry of a judgment of divorce. In addition, the defendant shall pay 80% and plaintiff shall pay 20% of all un-reimbursed and/or non-covered necessary medical, dental, orthodontic, optical and prescription expenses incurred on behalf of the issue of the marriage, including medically necessary psychological expenses. The plaintiff shall pay her own uncovered expenses.

Life Insurance
The defendant is directed to maintain life insurance coverage in the sum of $500,000.00, naming the defendant as trustee for the benefit of the children until the youngest is emancipated.
Divorce cases entail tiresome and complicated issues. It will involve much time for preparation testimonies of qualified witness to give opinion to which the court may base a sound judgment.
If you are contemplating of going in this kind of proceeding, the Stephen Bilkis & Associates and its Nassau County Family Attorneys can offer you their expertise in dealing with these cases. Also, our Nassau County Order of Protection Lawyers will work side by side to ascertain that protective orders are sought in situations where a party is a victim of violence by the other spouse.

Petitioner Asserts Right to Counsel via Legal Aid

May 7, 2015,

A New York Family Lawyer said that, the basis of this application, made by the Legal Aid Society of Nassau County and the attorney in charge of the Legal Aid Society of Nassau County, is the refusal by the Judge of the District Court of Nassau County, to permit the petitioner to continue to represent defendant on a pending charge of violating Section 240.20(5) and 240.20(6) of the Penal Law.

On June 24, 1971 defendant appeared pro se in the Arraignment Part of the District Court in response to the charge supra. At that time it is alleged that defendant indicated he could not afford an attorney and the matter was adjourned to June 20, 1971 and July 29, 1971 when defendant was arraigned. At that time defendant was represented by the Legal Aid Society to whom the case had been referred and who accepted defendant as a client.

A New York Divorce Lawyer said that it is alleged that petitioner represented defendant at conferences held on September 16, 1971 and October 4, 1971 before a Judge when the matter was marked ready for trial. At that time the Judge refused to permit the petitioner to continue to represent defendant because to quote from the Judge’s affirmation, dated October 14, 1971: 'It is manifest that the responsibility to make full, honest and clear disclosures rests upon those applying for legal assistance and that failure or refusal to do so, as was the case with defendant, is of such a grave nature that the Court can only resolve the issue by denying the application for assignment of free counsel until such time as defendant demonstrates that he is entitled thereto.'

A Queens Family Lawyer said in the affidavit submitted by defendant in support of his application to be assigned free counsel, dated July 20, 1971, defendant states that he is 18 years of age, single, and resides in Nassau County; that his father is employed earning $720 per month net; his parents own a home valued at $25,000 on which there is a mortgage (amount not set forth); the parents own a 1969 car which is financed. The application indicates that defendant is a student with a notation that as of October 12, 1971 he is no longer a student, but unemployed. He sets forth expenses of $1,069 a month, which obviously are attributable to the parents since they include rent or mortgage payment of $191, $200 per month for food, utilities, home insurance, etc. There is a statement at the end of the affidavit, handwritten, 'Mother states they are so far in debt they cannot afford (private) counsel for (defendant).'

A Nassau Family Lawyer said that, in the opposing affirmation submitted by the Judge, he states that upon ascertaining that he is unemancipated, he determined that inquiry should be made into the true financial circumstances of those responsible for defendant namely his parents. He adjourned the matter to October 12, 1971 so as to permit the defendant to return to court with a copy of his father's income tax return for 1970 and be accompanied by his parents. On October 13, 1971 the defendant returned without his parents and without the tax information. (Petitioner alleges that defendant stated his mother could not find the return). Since the defendant provided no proof of parental income, at that point the Court adjourned the matter to October 21, 1971 and directed the defendant to obtain private counsel.

The Court finds that the petitioner has failed to join a Necessary aggrieved party in this proceeding, namely, defendant, and the petition is therefore defective. Presumably the petitioner believes itself to be an aggrieved party. However, this does not eliminate the necessity of joining the defendant.

Petitioner proceeds under Section 7802(c) of the CPLR, entitled 'Prohibition in favor of another', which states: 'Where the proceeding is brought to restrain a body or officer from proceeding without or in excess of jurisdiction in favor of another, the latter shall be joined as a party.

However, the Court will overlook the defect and in the interests of justice make its determination on the merits. Turning to the first consideration, namely, whether the Judge possesses the requisite authority to make the determination under review, County Law, Section 722, provides in part: 'Plan for representation. 'The board of supervisors of each county and the governing body of the city in which a county is wholly contained shall place in operation throughout the county by December first, nineteen hundred sixty-five a plan for providing counsel to persons charged with a crime, who are financially unable to obtain counsel. Each plan shall also provide for investigative, expert and other services necessary for an adequate defense. The plan shall conform to one of the following: '1. Representation by a public defender appointed pursuant to county law article eighteen-A. '2. Representation by counsel furnished by a private legal aid bureau or society designated by the county or city, organized and operating to give legal assistance and representation to persons charged with a crime within the city or county who are financially unable to obtain counsel. 'Any judge, justice or magistrate assigning counsel pursuant to sections one hundred eighty-eight, three hundred eight and six hundred ninety-nine of the code of criminal procedure, or in assigning counsel to a defendant when a hearing has been ordered in a proceeding upon a motion for a writ of error coram nobis, shall assign counsel furnished in accordance with a plan conforming to the requirements of this section.'

Four different plans are available for a county under County Law 18--B. Nassau County adopted a plan of representation utilizing the Legal Aid Society rather than a public defender, and thereafter contracted with the Legal Aid Society of Nassau County to represent indigents charged with crime. N.B.--Neither the petitioner nor respondent has supplied the Court with a copy of the contract between the County and Legal Aid Society. This Court, therefore, is unable to consider any of the terms of this contract and their effect, if any, on this proceeding.

While Article 18--A of the County Law enunciates the duty of a public defender, there is no similar section with respect to the Legal Aid Society. Inasmuch as Nassau County is given a choice of providing representation for indigents through a public defender or the Legal Aid Society (County Law Section 722(1) and (2), supra, it is only reasonable to conclude that since the underlying purpose is identical, the duties of either selection will be the same. The cost for either is a County charge.

Section 722--d, 'Duration of Assignment', of the County Law provides: 'whenever it appears that the defendant is financially able to obtain counselor to make partial payment for the representation or other services, counsel may report this fact to the court and the court May terminate the assignment of counsel or authorize payment, as the interests of justice may dictate, to the public defender, Private legal aid bureau or society, private attorney, or otherwise.
The statute (722--d) makes it crystal clear that the Court has the authority to terminate free legal aid when it determines the need for same has passed. The Attorney General of this State, in an opinion rendered by him on April 21, 1966, at pages 84 and 85, states that in a county where a public defender has been selected as the mode for representation of indigents, 'the finality and duration of such determination is a judicial function.'

There is no dispute that in the criminal proceeding, which is the basis of the proceeding herein, the Court may properly exercise jurisdiction over the assignment of counsel, pursuant to Article 18--B of the County Law and Section 35 of the Judiciary Law. This jurisdiction is necessarily continuing in nature and it would be illogical to hold that whereas the Court is given the initial responsibility to make inquiry to determine need for assigned counsel, it thereafter is without the authority to remove counsel for just cause, including a determination that the defendant has the financial means to provide counsel of his own selection. The Court finds Judge has the power and duty to explore into defendant's eligibility for free legal aid.

The Court, having determined that the Judge acted within the scope of his judicial authority, now turns its attention to whether the determination was arbitrary, capricious, or an abuse of discretion. When the defendant failed to respond to the Court's directive, the Court had no opportunity to probe into the financial background of the defendant's family and those elements of inquiry which the Federal Court, set down as possible avenues of inquiry to determine indigence.

The assignment of free legal counsel is discretionary with the Court and when a defendant willfully refuses to comply and cooperate with the Judge who is attempting to exercise this discretion in a just and fair manner, said defendant certainly brings no merit with him in this review proceeding.

The Court determines that Judge was vested with the inherent judicial power, insulated by the County Law and Judiciary Law, to make the determination under review and that he made a reasonable determination. The Court determines that the refusal to approve defendant's application for free legal counsel was neither arbitrary, capricious nor an abuse of the Court's discretion. The defendant approached the Court apparently with an attitude that free legal counsel was his for the asking as a matter of right and this is a misinterpretation of the statute. This matter has been set down for trial on October 21, 1971.
A short form judgment is attached herewith (omitted from published opinion). The Court directs that the defendant be served with a copy of the judgment entered hereon and be given reasonable time in the discretion of the District Court within which to obtain counsel and a new trial date set therefor.

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Petition Brings Case Requesting Relief Pursuant to Real Property Laws

May 6, 2015,

A New York Family Lawyer said that this is a hybrid proceeding and action for damages by the petitioner as general partner of a Family Limited Partnership "the petitioner" for stated relief pursuant to Real Property Tax Law Article 7 and/or a writ of mandamus pursuant to CPLR Article 78 compelling the respondent Nassau County Board of Assessors and the Nassau County Department of Assessment "the respondents" to: (1) implement and abide by a decision rendered after a small claims assessment review hearing, dated November 27, 2006 which, inter alia, reduced the petitioner's assessment for the 2006/2007 tax years and recognized the petitioner's standing to maintain a SCAR proceeding within the meaning of Real Property Tax Law § 730; (2) further compelling the respondents to grant the petitioner a partial STAR exemption (RPTL § 425), and/or in effect, for relief setting aside the respondents' January, 2007 denial of the petitioner's application for a partial STAR exemption; and (3) for further relief awarding the petitioner punitive damages in the amount of $1 million is granted in part and denied in part as set forth below.

The petitioner as general partner of the Family Limited Partnership has commenced the within hybrid action and proceeding, styled as one pursuant to CPLR Article 78 and/ or article 7, et., seq., of the Real Property Tax Law (A. Pet., ¶ 18), for a writ of mandamus compelling the respondent Nassau County Board of Assessors and the Nassau County Department of Assessment [ collectively "the respondents"] to implement and abide by a decision rendered after a small claims assessment review hearing, dated November 11, 2006 which, inter alia, (i) recognized the petitioner-partnership's standing and eligibility to maintain a SCAR proceeding within the meaning of Real Property Tax Law § 730; and (ii) then reduced the petitioner's assessment for the 2006/2007 tax years.

A New York Divorce Lawyer said that the respondents have currently declined to implement or enforce the hearing officer's SCAR decision on the theory that the JHO lacked jurisdiction over the petition, since a family limited partnership allegedly cannot qualify as an "owner-occupier" within the meaning of Real Property Tax Law § 730.

A Nassau County Family Lawyer said that the respondents have also determined — for the same reason — that petitioner's residence is ineligible for the so-called partial "STAR" school exemption, i.e., that a family limited partnership cannot qualify as an owner-occupant pursuant to the applicable provision of Real Property Tax Law § 425.
Notably, prior to transferring the subject residence to the family limited partnership, the petitioner had received the STAR exemption in connection with the property. It is undisputed that the respondents denied the petitioner's subsequent application for STAR relief by undated letter received by the respondents in January of 2007. Thereafter, by notice of petition dated April, 2007, the petitioner commenced the within hybrid proceeding and action, styled as one pursuant to CPLR Article 78 and/or Article 7 of the Real Property Tax Law.

A Staten Island Family Lawyer said that among other things, the petitioner asserts that: (1) the respondents have arbitrarily denied him partial STAR relief and erroneously refused to enforce and recognize the SCAR hearing decision; and (2) that sections 425 and 730 of the Real Property Tax Law are unconstitutional to the extent that SCAR and STAR relief has been denied to residential properties like his, held in "bifurcate" and/or "beneficial" form through "family limited partnerships".

The petitioner further claims entitlement to an award of punitive damages in the amount of $1 million based upon allegedly malicious and retaliatory conduct supposedly perpetrated by the respondents in connection with the assessment of his property. The petition is granted to the extent indicated below. The record establishes that, as to the SCAR issue, the JHO had before him — as a factually-based question — whether the subject property was being utilized "exclusively for residential purposes" pursuant to Real Property Tax Law § 730[1][b] and permissibly concluded that it was. There is nothing in the record which indicates that the subject property has been devoted to anything other than residential use. Indeed, the record supports the conclusion that the partnership was created solely for tax and estate planning purposes; that it does not engage in any commercial business activities; and that it serves and exists solely as the Smiley family's personal and primary residence.

The Court similarly rejects the assertion that, under the circumstances presented here, a family limited partnership cannot, as a matter of law, "owner-occupy" a residential property for the purposes of qualifying for expedited, SCAR relief. It bears noting that Real Property Tax Law § 730 does not identify or limit the manner in which property devoted "exclusively to residential purposes" must be owned or held as a prerequisite to the availability of SCAR relief.

Rather, Real Property Tax Law § 730[1] provides that, "[a]n owner of real property claiming to be aggrieved by an assessment on real property on the ground that such assessment is unequal or excessive may file a petition for review pursuant to this article. Significantly, Real Property Law § 730[9] expressly authorizes the filing of SCAR petitions in analogous circumstances where applicants beneficially own otherwise qualifying, residential property, e.g., where such property is held in trust for the "benefit of a person or persons."

Upon the particular facts presented here, a construction of the statute's neutral language which excludes residential property merely because it is titled in family limited partnerships, would be inconsistent with the underlying objectives of the SCAR statute, i.e., to afford homeowners "speedy and inexpensive relief through a simplified review procedure".

It is settled that when a proposed "construction would thwart the settled purposes of the statute literal and narrow interpretations should be avoided".

Lastly, there is no question that pursuant to the statutory SCAR scheme, the respondents are not afforded the discretion to simply ignore or decline to enforce a legally constituted ruling issued by a judicial hearing officer. Since it has been demonstrated that there exists a clear legal right to the relief sought, mandamus will lie to compel the respondents to recognize and enforce the hearing officer's decision. With respect to the STAR exemption, the petition asserts, inter alia, that family limited partnerships fit within the existing definitional language of the statute and that qualifying them for STAR benefits is consistent with the legislative objectives underlying Real Property Tax Law § 425. The Court agrees.

Initially, while the respondents contend that the claims advanced herein are exclusively redress able in a proceeding pursuant to RPTL Article 7, the Court notes that: (1) the amended petition is styled as a proceeding brought alternatively under both CPLR Article 78 and RPTL Article 7 (A. Pet.,1118); and (2) the respondents have not argued — much less demonstrated — that the proceeding as presently constituted is time-barred by the 30-day limitations period applicable to Article 7 proceedings.

Assuming that the respondents are relying on a limitations-based theory by advancing this claim, it is settled that the party relying on a statute of limitations defense bears "the initial burden of establishing prima facie that the time in which to sue has expired" which entails proof — not offered here — demonstrating "when the petitioner's causes of action accrued".

Alternatively, and to the extent the respondents are simply asserting that the procedural vehicle selected by the petitioner is technically incorrect, the Court may convert the instant matter to the proper procedural form. Turning then, to the relevant statutory language, the Court notes that RPTL § 425[3][a] provides in part, that in order to "qualify for exemption pursuant to this section, the property must be a one, two or three family residence, a farm dwelling or residential property held in condominium or cooperative form of ownership". The property must, additionally serve as "the primary residence of one or more of the owners" thereof. The petitioner's submissions have established compliance with the foregoing statutory requisites.

It is settled that the STAR program was "intended to provide a property tax exemption to all primary residences Legislative Memorandum, New York State Assembly. Moreover, the "interpretation of exemption statutes `should not be so narrow and literal as to defeat their settled purpose.

With respect to "one, two or three family residence family," the statute does not prescribe or list any mandatory form or method by which title to a "family residence" must be held. Nor does the statute make reference to or mandate individual ownership by joint tenants, tenants in common or tenants by the entireties, but rather, emphasizes the residential nature of the property and number of families residing therein.

Although the term "owner" is undefined, the legislature has seen fit to provide STAR exemptions to certain applicants who cannot demonstrate formal, legal ownership of otherwise qualifying, residential property, but who — in realty — are clearly the effective or beneficial owner-occupants of the properties, namely, trust beneficiaries (RPTL § 425[3][c]); "farm dwellings" held in partnership or corporate form (RPTL § 425[3][d]); and cooperative shareholders.
Accordingly, the legislature has plainly concluded that authorizing exemptions for parties whose primary residences are formally titled in other entities, is entirely consistent with the underlying objectives of the STAR program, i.e., to "provide a property tax exemption to all primary residences."

Here, as noted previously, the record supports the conclusion that the subject property serves as the primary residence of the individuals who are members of the family partnership; that pursuant to the partnership agreement, the subject residence serves as the partnership's principal place of business; that the partnership conducts no business activities, produces no products and provides no services, and that the partners (the Smileys) are personally responsible for paying the assessed taxes.

The narrow assertion that a family limited partnership can never owner-occupy a residence within meaning of RPTL § 425 even when all "partners" are primary residents of the subject property exalts form over substance and thereby serves to "thwart the settled purposes of the statute".

The fact that legislative efforts unsuccessful to date may have been made to expressly include family limited partnerships within the explicit scope of the statute, does not preclude the granting of relief based upon the existing and relevant language of the current legislation.
In short, the constellation of relevant factors presented supports the availability of a STAR exemption in connection with the petitioner's otherwise qualifying, family limited partnership. Since the respondents' January, 2007 determination denying partial STAR relief lacks rational support in the record, it should be vacated and the exemption granted to the extent that petitioner otherwise qualifies for its benefits.

In light of the Court's determination, it is unnecessary to reach the petitioners’ constitutional assertions, as to which, it appears, the "requisite statutory notification" to the New York State Attorney General has not been provided. However, the cause of action for $1 million in punitive damages based on alleged retaliatory conduct, is dismissed.

The Court agrees that the assertions made in support of this claim do not raise a viable claim as to the respondents' alleged retaliatory intent. In any event, it is settled that "that the State and its political subdivisions are not subject to punitive damages".

The Court has considered the parties' remaining contentions and concludes that they are lacking in merit.

Accordingly, it is, ordered that the branch of the petition which is for a writ of mandamus compelling the respondents to implement and abide by a decision rendered after a small claims assessment review hearing, dated November 27, 2006, is granted, and it is further, ordered that the branch of the petition which is for, in effect, review and annulment of the respondents' January, 2007 determination denying the petitioner's application for a STAR exemption is granted; the determination is annulled and it is declared that the petitioner is entitled to the partial exemption sought; and it is further, ordered that the branch of the petition which is to recover punitive damages, is dismissed.

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Court Discusses Child's Eligibility for State Assistance Programs

May 5, 2015,

A New York Family Lawyer said that under the Federal public assistance program called Aid to Families with Dependent Children (AFDC), family income is considered in determining a child's eligibility for relief. All of a natural father's income is typically deemed available to his child, but the situation is more complicated where stepfathers are found. The Federal Regulations allow consideration of all of the stepfather's income in estimating the child's eligibility only if the applicable State law establishes a general obligation on all stepfathers to support their stepchildren, but not where the stepfather is liable to support only a stepchild likely to be a public charge.

A New York Divorce Lawyer said that in this decision we find, after reconciling a confusing statutory scheme, that in New York there is no general obligation of stepfathers to support their stepchildren, and that these support obligations only occur where the child is otherwise to become a public charge, or under special circumstances of agreement or estoppel. Accordingly, the stepfather's entire income is not automatically figured to the stepchild, but as explained below, on familiar social services principles, only so much of it as is actually devoted to the child.

A Westchester Family Lawyer said that on July 1971, LS and GS were married, each for the second time. Mrs. LS had two children by her first marriage which was ended by divorce, and because her ex-husband, Mr. K, failed to support the family, she and the children received AFDC public assistance from the Nassau County Department of Social Services. Mrs. GS has three children by his former marriage, who live with their natural mother, and pays $238 per month to support them, by court order, plus paying medical, dental and life insurance expenses. He has not adopted the two K stepchildren. Earning a net salary of $190 per week, Mrs. GS and his wife, after his support payments are deducted, are self-sufficient and have not applied for public assistance in their own behalf.

A Suffolk County Family Lawyer said that after a protracted delay in the local agency's termination of assistance to the two stepchildren, 1 in July 1972, their AFDC assistance was discontinued. The agency budgeted Mrs. GS's entire income towards the needs of the stepchildren, as well as those attributed to himself and Mrs. LS, recognized a $165 per month shelter need instead of the $294 mortgage expense actually incurred, and found a budgetary surplus of $68.10.

By fair hearing decision dated September 29, 1972, the State affirmed that determination. In so doing, it specifically relied upon the obligation of stepparents in New York to support stepchildren 'who are recipients of or in need of public assistance' and 18 NYCRR § 352.31, which provides that all available income of a spouse, if in the home, shall be applied against the needs of the family. This Article 78 proceeding followed, basically asserting that the State determination, and regulation as applied, is contrary to Federal requirements.

AFDC in New York is a co-operative venture. Its origin is the Federal Social Security Act, 42 U.S.C. § 601 et seq. under which millions of dollars in Federal aid are dispensed to New York which in return is required to conform its State plan to Federal requirements.
In general, Federal requirements define the class of 'dependent children' entitled to receive AFDC. That definition is binding upon the States participating in the AFDC program.

Congress has defined a dependent child entitled to AFDC, in pertinent part, as a: 'needy child . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent . . .'. 42 U.S.C. § 606(a).
45 CFR § 233.90(a) provides in pertinent part: 'A State plan must provide that the determination whether a child has been deprived of parental support or care will be made only in relation to the child's Stepparent who is ceremonially married to the child's natural or adoptive parent and Is legally obligated to support the child under State law of general applicability which requires stepparents to support stepchildren to the same extent that natural or adoptive parents are required to support their children. The income only of the parent described above will be considered available for children in the household in absence of proof of actual contributions'.

In Lewis v. Martin, Supra, the United States Supreme Court upheld the predecessor to this regulation which prohibited assuming income being available from a 'substitute parent', holding that only stepparents bound to support by State law are included in the term 'parent'.

In Sterrett v. Gaither, the Supreme Court affirmed a unanimous three judge court ruling which restrained enforcement of Indiana's public assistance statute that counted nonadoptive stepfathe income towards AFDC as being not a law of 'general applicability' and hence in conflict with Federal regulations. Indiana's law required stepparents' income to be considered available to support a stepchild where the child would otherwise be eligible for AFDC.

The United States Department of Health, Education and Welfare (HEW), the Federal agency delegated the responsibility of enforcing the Social Security Act, has precisely interpreted the meaning of a law of 'general applicability’: 'A duty of general applicability (is one) which (a stepparent) could be compelled by court order to fulfill . . . regardless of whether the children would otherwise receive AFDC payments'.

The stepparent support law in New York is statutory in origin. There was no such common law obligation.

Under New York statutory law, the support liability of a stepparent is imposed only where the stepchild is receiving or in danger of receiving public assistance. The obligation is set forth principally in Family Court Act § 415, entitled 'Duties to support recipient of public assistance or welfare and patients in institutions in the department of mental hygiene', as follows: 'The . . . parent of a recipient of public assistance or care or of a person liable to become in need thereof . . . if of sufficient ability, is responsible for the support of such person . . . Step-parents shall in like manner be responsible for the support of minor children'.

This provision is reiterated in substantially identical form in Social Services Law § 101(1). Sections 413 and 414 of the Family Court Act impose a general duty of minor child support upon the natural mother and father, without regard to the child's resources, but make no mention of a comparable stepparent support responsibility. The Domestic Relations Law and matrimonial actions arising under it generally rely upon and incorporate the support obligations contained in the Family Court Act and Social Services Law.

The State, in arguing that a 'general' support obligation exists, cites, however, Article 3--A of the Domestic Relations Law. It is true that a 'child' eligible for support for the purpose of Article 3--A is defined to include 'a stepchild’.

However, Article 3--A does not create a general obligation. Entitled 'Uniform Support of Dependents Law' (USDL), it is a vehicle for the conduct of essentially an enforcement support proceeding where the petitioner seeking support lives outside the county or state where the respondent obligor resides. Proceedings under Article 3--A are maintainable only between residents of different counties, or reciprocating states with similar USDL statutes. Domestic Relations Law § 35. 3-A They avoid the inconvenience of the party seeking support having to go to the place where the obligor resides, and allow for a bifurcated hearing, first in one jurisdiction, as to the petitioner's affirmative proof, then in another jurisdiction as to respondent's reply. Where a dispute arising under Article 3--A requires application of the substantive support law of New York (either between only New York residents or involving New York dependents), and not that of a foreign jurisdiction, the reported cases look to the Family Court Act and Social Services Law for imposition of substantive support obligations.

Therefore, Article 3--A would have no application to the present support situation in the home courts where both stepfather and stepchildren reside in Nassau County. Moreover, despite its broad language, it does not rise above the limited application of the Article and create an independent obligation apart from the governing substantive support statutes. Were it otherwise the existence of support obligations only referred to in Article 3--A, such as the support duty of a grandparent or indeed stepparent aside from the indigency of their stepchildren, would depend wholly on the accident of residence. Some dependents without a common county residence with their claimed supporting counterparts would be entitled to support, those with common residence would not. Such a bizarre statutory result is simply not logical or fair. And, if it were the law in New York, in any event, that would certainly not be a support obligation of 'general applicability', under Federal standards, being as it would be, then, fragmented and determined on the basis of intrastate residence. To the extent Article 3--A refers to broader support obligation than contained in the Family Court Act, it must be for purposes of including and accommodating foreign support law, when it is to be applied in New York courts.

The courts have uniformly made stepparent support liability contingent upon the non-adopted stepchild's status as an actual or potential public charge.

Section 125 of the Public Welfare Law (predecessor to Social Services Law § 101) does not impose an absolute duty on a stepfather to support his minor stepchild. It only requires him to furnish such support if he is of sufficient ability to do so, and the child is or is liable to become a public charge.

Virtually every reported case where the child's resources were disclosed specifies that the stepparent liability was invoked only if the infant were so destitute.

The State does not cite, nor has the Court been able to find, a single case under contemporary support statutes where a stepparent was required to support a non-indigent stepchild.

A general obligation of support imposed upon a natural or adoptive father does not turn on the child's dependence upon public assistance, and, indeed, exists regardless of the child's own resources and those of his mother. Moreover, unlike the stepparent liability, the natural father must support his child even after the death or divorce of the natural mother.
'The provision for child support is certainly on a broader basis and has deeper roots than the provision for support of step-children.'

The State's contention that New York's stepparent support law, acknowledged as limited to 'minor children who are the recipients of public assistance' is 'commensurate with the obligation imposed upon natural and adoptive parents' is simply not borne out by the cases. The Federal requirement is not satisfied if only stepchildren receiving public assistance have equal support rights with each other. Rather, All stepchildren must be the beneficiaries of a general obligation of support. And, the prior cases brought in New York where the question of 'general applicability' of stepparent support obligation has been raised have not decided it upon the merits. They have merely deferred temporary or summary judgment rulings in favor of trial determinations. Accordingly, there has as yet been no decisive ruling on the issue presented here.

We believe that New York's statutory stepfather support obligation is to be imposed only upon stepfathers of children who are receiving public assistance or in danger of so doing. It is not an obligation 'generally applicable' to all stepchildren.

This is not to say that under appropriate circumstances a stepfather could not be liable to support a non-public charging child. There can be specific courses of dealing, marital inducement, express or implied agreement, equitable estoppel, or fundamental fairness which can, in a given family, result in individual support commitment irrespective of statute. But, this too is far from a general obligation affecting all stepchildren.

Under the present statutory circumstances, the HEW regulation does not prevent the State in computing potential assistance from taking into account so much of the stepparent's income as is actually spent on the children. It merely prohibits the automatic assumption that his entire income is available and applied to their support. The apparent reasoning underlying 45 CFR 233.90(a) is that a duty of automatic support only as to welfare stepchildren places upon them an added burden inhibiting remarriage of their natural custodial parent, not equitably imposed upon the rest of society's stepchildren. To the extent the stepparent's income is deemed applied towards the dependent stepchildren, it violates the regulation designed to insure equal societal treatment of AFDC children.

Since New York's stepparent support law is not 'generally applicable', stepfather Slochowsky's entire income was improperly applied automatically towards his stepchildren's needs. It is doubtless properly deemed applied to the wife's needs, and is sufficient to meet the needs of, and warrants denial of assistance to Mr. and Mrs. LS. But, under governing Federal standards, it is not all to be included automatically in the children's budgetary computation.

The petition is therefore granted, respondent's application of 18 NYCRR § 352.31 here is declared inconsistent with 45 CFR § 233.90(a), his determination after fair hearing affirming the local agency's discontinuance of AFDC to petitioner's children is annulled, retroactive to July 1, 1972, and respondent is enjoined from attributing Mrs. GS's income towards the needs of his stepchildren, except insofar as it is actually so applied.

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Court Discusses Outcome of Juvenile Hearing

May 4, 2015,

A New York Family Lawyer said that the respondent has moved to vacate this Court's order dated February 21, 2007 which, upon his consent, extends his placement with the New York State Office of Children and Family Services ("OCFS") as a juvenile delinquent for twelve months and directs that OCFS continue respondent's present placement with L & W, an authorized agency within the meaning of Social Services Law §371 (10).

In support of the motion to vacate the Court's order extending his placement with OCFS for L & W, respondent contends that: (i) the Family Court was without jurisdiction to extend placement; (ii) the proceedings were defective in that the Court did not have the authority to reconvert the proceeding from a Person in Need of Supervision ("PINS") proceeding to a juvenile delinquency proceeding; and (iii) even assuming that the Court had jurisdiction to extend placement with OCFS that placement could not be extended beyond his 18th birthday without his consent.
By petition filed pursuant to Family Court Act §310.1 on September 14, 2004, respondent was alleged to have committed acts which, were he an adult, would constitute the crimes of Criminal Mischief in the Fourth Degree and Menacing in the Third Degree. Respondent's initial appearance upon the juvenile delinquency petition occurred on September 27, 2004 and on that same date respondent entered an admission to the count charging him with committing an act which would constitute the crime of Criminal Mischief in the Fourth Degree. Upon respondent's admission to that count of the petition the Court directed the Department of Probation to conduct an investigation into respondent's circumstances and prepare a written report to the Court, and the Court "temporarily" converted the juvenile delinquency petition to a PINS petition upon the consents of the Presentment Agency and respondent. Respondent was then remanded to the custody of the New York City Administration for Children's Services ("ACS") as a PINS and the Commissioner of ACS was directed to arrange for a diagnostic evaluation of the respondent.
A PINS dispositional hearing pursuant to article 7 was commenced before the Court on November 5, 2004. The written report of the Department of Probation was received into evidence along with a report from L & W, the authorized agency at which respondent had been placed by ACS under the Court's remand order. However, because the L & W caseworker directly responsible for respondent's case was unavailable and because the diagnostic evaluation of the respondent had not been completed, the hearing was continued until December 10, 2004. When the hearing continued on December 10, 2004, the L & W caseworker appeared and the caseworker advised the Court that the agency planned to refer the respondent for appropriate services. Respondent was then released to the custody of his mother and the Department of Probation was requested to consider the service plan proposed by L & W and to update its report in light of that plan if appropriate.

A New York Divorce Lawyer said that the dispositional hearing continued on January 20, 2005 and the Department of Probation submitted an updated report. At that time, respondent's mother informed the Court that respondent had disobeyed the curfew she had set for him and that he had come home at whatever time he pleased, often in the early hours of the morning after having stayed out all night. Given that respondent appeared to be beyond parental control, the Court vacated its prior order substituting a PINS petition for the juvenile delinquency petition and respondent was ordered detained by the Department of Juvenile Justice pending further proceedings upon the reinstated juvenile delinquency petition on February 7, 2005. The Family Court Mental Health Services Clinic was directed to conduct a psychological assessment of the respondent and the Department of Probation and ACS were directed to explore possible placement resources for the respondent.

A Manhattan Family Lawyer said at the dispositional hearing recommenced on February 7, 2005 and the reports by the Mental Health Services Clinic, ACS and the Department of Probation were introduced into evidence. Based upon all of the evidence adduced at the hearing the Court concluded that the respondent was a person in need of supervision, treatment or confinement and he was adjudicated to be a juvenile delinquent. Thereafter, upon the Court's own motion and with the consent of the Law Guardianship, a finding that respondent is a PINS was substituted for a finding that he was a juvenile delinquent and based upon the evidence adduced at the dispositional hearing respondent was placed in the custody of the Administration for Children's Services with a further direction that he be placed with L & W for 12 months. The order placing the respondent with ACS was based upon the Court's determination that he required supervision and placement, that continuation of respondent in his own home would not be in his best interests, that reasonable efforts had been made to maintain respondent in the community by substituting a PINS petition for the juvenile delinquency petition and by ultimately releasing him to his parent with the intention of providing him with appropriate community based services. In addition, the Court also considered the needs and best interests of the respondent as well as the need to protect the community.

A New York City Family Lawyer said that the petition seeking to extend respondent's placement and to review the ACS/L & W permanency plan was filed on December 19, 2005 by ACS pursuant to Family Court Act §756-a. In support of the petition to extend placement, ACS alleged that respondent has made progress in the therapeutic program at L & W, that he attends school regularly and is participating in psychotherapy. While the agency's goal was to eventually reunite respondent with his mother, the agency was unable to presently effect that goal because the mother lacked permanent housing. Thus, the agency's immediate plan was to implement family therapy and to assist respondent's mother in obtaining suitable permanent housing.

During the pendency of the proceedings upon the extension of placement petition the Court was advised that respondent had absconded from the L & W campus and the Court issued a warrant for him, and by order dated January 25, 2006, respondent's placement was temporarily extended pending his appearance before the Court upon the warrant. Respondent was returned upon the warrant on January 30, 2006, the warrant was vacated and respondent's placement was then temporarily extended until February 16, 2006 pending further proceedings upon the petition. On February 16, 2006 a caseworker from L & W advised the Court that respondent had again absconded from L & W RTC and another warrant was issued for him.

When respondent next appeared before the Court on April 12, 2006 the parties consented to the entry of an order extending placement with ACS for one year, effective February 6, 2006, based upon the record before the Court which strongly indicated that respondent required continued supervision and treatment and that a return to his parent would not be in his best interests at this time. In addition, the Court determined that the agency's permanency plan (concurrent plans for a return to parent or a transition to independent living) for the respondent was reasonable and that the agency had exercised reasonable efforts to effectuate that plan.

On June 28, 2006 the L & W caseworker appeared before the Court to report that the respondent had again absconded from the facility and another warrant was issued for the respondent. Respondent voluntarily appeared upon the warrant on August 30, 2006, the warrant was vacated, and another judge directed that he return to placement with the agency. This Court received an updated status report from L & W on September 20, 2006 and the order of placement continued. On November 17, 2006 the agency caseworker again appeared to request a warrant for the respondent who had again absconded from the facility. The warrant was issued and respondent was not returned upon the warrant until February 8, 2007. At that time, the Court sua sponte vacated its February 2, 2005 order which substituted a PINS finding for an order finding respondent to be a juvenile delinquent, and he was remanded to Elmhurst Hospital Medical Center for a psychological evaluation in accordance with Family Court Act §251, and the proceedings were continued until February 21, 2007.

On February 21, 2007, the Assistant Corporation Counsel, respondent, his mother and the Law Guardian appeared before the Court. At that time, and upon the consent of the parties, an order was entered pursuant to Family Court Act §353.3 which placed respondent in the custody of the Office of Children and Family Services for twelve months as a juvenile delinquent, with the specific directive that he be placed at L & W by OCFS. As part of the placement order, the Court directed that respondent cooperate with any drug treatment program offered by L & W and that OCFS and L & W provide respondent with all necessary medical care, as required by statute.
Thereafter, respondent filed this motion for an order vacating the February 8, 2007 order substituting a juvenile delinquency finding for a PINS finding and the subsequent order placing respondent with OCFS for L & W.

Respondent's argument that the Court lacked the authority to enter the February 8, 2007 order which resubstituted a juvenile delinquency finding for a PINS finding is without merit.
Article 3 of the Family Court Act clearly authorized the entry of the order in question as well as the subsequent placement of respondent with OCFS for L & W.

The Court's authority to enter the various orders under review in this case is derived from two complimentary sections of article 3 of the statute. The PINS substitution section of the juvenile delinquency statute, Family Court Act §311.4, reads as follows:

1. At any time in the proceedings the court, upon motion of a respondent or on its own motion, may, with the consent of the presentment agency and with the consent of the respondent, substitute a petition alleging that the respondent is in need of supervision for a petition alleging that the respondent is a juvenile delinquent.

2. At the conclusion of the dispositional hearing the court, upon motion of the respondent or its own motion, may in its discretion and with the consent of the respondent, substitute a finding that the respondent is a person in need of supervision for a finding that the respondent is a juvenile delinquent.

Family Court Act §311.4 (1) authorizes the court to substitute a petition alleging that the respondent is a person in need of supervision for a petition alleging that he or she is a juvenile delinquent. Such a substitution may be made at any stage of a juvenile delinquency petition upon the consent of both the Presentment Agency and the respondent. The substitution of a PINS petition for a juvenile delinquency petition allows the respondent to obtain "certain advantages, including the preclusion of placement in a secure facility and the absence of a finding that a crime was committed". Family Court Act §311.4 (2), on the other hand, authorizes the court to substitute a finding that a respondent is a person in need of supervision for a finding that he or she is a juvenile delinquent. "A court that is considering the dispositional component of a juvenile delinquency proceeding has the discretion in an appropriate case to substitute a PINS finding for the finding of juvenile delinquency".

While the procedures applicable to the Court's substitution authority under Family Court Act §311.4 are somewhat dissimilar, whether the Court substitutes a PINS petition or a PINS finding, the underlying intent is to relieve the juvenile of being stigmatized as a juvenile delinquent and to allow the Court to address the child's needs under the civil provisions of article 7 rather than in the context of a quasi-criminal juvenile delinquency proceeding.

Family Court Act §355.1 is a codification of the court's inherent authority to modify or vacate its prior orders in a juvenile delinquency proceeding, and the statute reflects the court's continuing jurisdiction and interest in a juvenile delinquency proceeding". Accordingly, pursuant to the statute, upon a motion by or on behalf of a respondent, or upon the court's own motion, a new fact-finding or dispositional hearing may be granted, and any prior order may be stayed, modified, terminated or vacated upon a showing of a substantial change of circumstances.
Because the needs and circumstances of a particular juvenile delinquent may be unique, there is no statutory definition of what constitutes a "substantial change of circumstances" for purposes of Family Court Act §355.1. While every asserted change of circumstances will not be substantial, a review of the cases reflects that this is a fact-specific determination which must be made by the Court.

Family Court Act §355.1 codifies the Family Court's inherent authority to modify or vacate a prior order entered in the course of a proceeding and nothing in the statute precludes the Court from exercising that authority on more than one occasion in the course of a juvenile delinquency proceeding. Similarly, while Family Court Act §311.4 (2) authorizes the Family Court to substitute a PINS petition for a juvenile delinquency proceeding "at any time in the proceedings" and Family Court Act §311.4 (2) authorizes the Court to substitute a PINS finding for a juvenile delinquency finding "at the conclusion of the dispositional hearing", nothing in that section purports to preclude multiple substitutions of petitions or findings in the course of a single proceeding where subsequent developments make clear that the prior substitution was an improvident exercise of judicial discretion. "Statutes are to be construed according to the ordinary meaning of their words and where a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded". Here, the statutory provisions in question provide clearly defined authority and specific procedures governing the exercise of that authority. Nothing in the language of Family Court Act §311.4 or §355.1 indicates any Legislative intention to prohibit multiple substitutions of petitions or findings or multiple applications for relief under Family Court Act §355.1.5

The reading of these statutory provisions urged by the Law Guardian, unsupported as it is by the plain language of these sections of the statute, would amount to an impermissible judicial rewriting of the statute to obtain a desired result.

While the case relied upon by the Law Guardian, Matter of Tiahek Q., appears to prohibit a resubstitution of a juvenile delinquency finding for a PINS finding, such a construction of the statute might very well discourage Family Court Judges from exercising their discretion to substitute a PINS finding for a juvenile delinquency finding, since were such a limitation to be read into the statute, the Court would thereafter be unable to take further action under article 3 to safeguard the safety and well-being of a child or to protect the community, once the initial substitution is made. There is simply no indication that the Legislature intended to limit the Court's authority in such a manner.

The Court has also considered whether the resubstitution of a juvenile delinquency finding would violate the prohibition against double jeopardy as noted in the Practice Commentaries. While the prohibition against double jeopardy applies to juvenile delinquency proceedings, the resubstitution of a juvenile delinquency finding does not constitute a second prosecution for the same crimes because the initial order substituting a PINS finding is not an acquittal, final order or a judgment upon conviction, and because a substitution under Family Court Act §311.4 (2) cannot occur unless the Court first adjudicates the child to be a juvenile delinquent pursuant to Family Court Act §352.1. Thus, an order which resubstitutes the juvenile delinquency finding merely restores respondent's status as an adjudicated juvenile delinquent, which was the position he occupied immediately prior to the Court's initial order of substitution.

On a more practical level, a construction of the statute in the manner suggested by the Law Guardian could possibly preclude the Court from entering any orders which might provide continuing services to the respondent who reached age 18 during the pendency of the motion.
Respondent has indicated his unwillingness to continue in the custody of the Office of Children and Family Services as an adjudicated juvenile delinquent. Since respondent was not placed in a restrictive setting after a finding that he committed a designated felony act and he has reached the age of 18,7 Family Court Act §355.3 (6) prohibits any extension of his placement as a juvenile delinquent absent his consent.8

Here, the reports filed with the Court on February 21, 2007 indicate that respondent is not yet prepared for a release to the community and that he would benefit from the continued services which would be provided by an extension of placement.

While Elmhurst Hospital reported that respondent does not presently suffer from any cognitive deficits or diagnosed mental illness, the February 16, 2007 report by L & W states that the respondent, who was initially admitted to that agency's PINS facility on September 28, 2004 and transferred to the agency's juvenile delinquent facility on September 22, 2006, "is not cooperating with services that have been recommended by the treatment team which could enhance his positive adjustment and progress in the RTC program." Additionally, the agency reported that respondent's mother had still not located suitable permanent housing and that she has a substance abuse problem. Moreover, the agency reports that since respondent was placed in the juvenile delinquent facility "he has not made any improvements instead he has increased his use of Marijuana/Alcohol and AWOLing. In the past five months, Gerry's maladaptive behavior has worsen[ed] as evidenced by his [adult] criminal arrest, truancy at school, frequent AWOL and his continued involvement with alcohol and drugs." Subsequent to the incident where respondent was intoxicated and fell off of an overpass sustaining a broken vertebra in his neck, he was returned to L & W and was released three times a week to attend occupational and physical therapy and that when he returned to the agency he frequently returned in an intoxicated state. Thus, the professional staff at L & W recommended that respondent be placed in a more structured alcohol and substance abuse treatment program, based upon his recent failure to comply with an out-patient treatment program to which he was referred to by the agency.

Finally, in contrast to the report by Elmhurst Hospital, the September 13, 2006 report of the psychiatric evaluation of the respondent conducted by Dr. Edward Halperin, a Board Certified Adolescent Psychiatrist, states that respondent suffers from "Oppositional Defiant Disorder and Personality Disorder, NOS with explosive features", and the psychiatrist recommended that respondent be placed in alcohol and substance abuse treatment and that he continue in placement in "a strict controlling atmosphere."
Given that respondent's consent was a prerequisite to the order extending his placement as a juvenile delinquent and that consent may not be compelled, the Court must conclude that respondent, who is now 18 years old, may revoke that consent, whether or not that is objectively in his best interests. Thus, respondent's present refusal to continue in placement with OCFS constitutes a substantial change of circumstances warranting judicial action pursuant to Family Court Act §355.1.9 Because respondent is clearly in need of continued supervision and treatment and he is manifestly incapable of caring for himself at the present time, and given his expressed willingness to continue his placement at L & W as a person in need of supervision in the custody of ACS,10 the Court will exercise its discretion and vacate the February 21, 2007 order extending respondent's placement with OCFS for L & W, and the Court will substitute a finding that respondent is a person in need of supervision for a finding of juvenile delinquency pursuant to Family Court Act §311.4 (2). Upon that substitution of the PINS finding for the juvenile delinquency finding, the Court enters an order pursuant to Family Court Act §756-a placing respondent with ACS for placement with L & W (PINS facility), upon his consent, effective February 6, 2007.
The permanency findings made by the Court in its February 21, 2007 order are hereby continued and they are incorporated into the superseding order placing respondent with ACS for L & W.
Notify the Law Guardian, the Presentment Agency, the Office of Children and Family Services, the Administration for Children's Services and the Department of Probation.

The Nassau County Family Lawyers at Stephen Bilkis and Associates handles special cases on guardianship, patermity, visitation and similar cases; in addition the Nassau County Child Custody Attorneys are competent in resolving cases involving child custody. If you know someone in need of legal help, tell them to visit their legal offices sitauated around New York for free case evaluation.