Petitioner Seeks Guardianship for Father

November 23, 2015,

A New York Family Lawyer said that, on or about October 8, 2004, petitioner commenced a proceeding pursuant to Article 81 of the Mental Hygiene Law for the appointment of a Guardian for his father, respondent an Alleged Incapacitated Person. The Petition alleged that as the result of a stroke occurring during a routine cardiac catherization, respondent (age 51) was currently residing in PENINSULA HOSPITAL CENTER (Head Trauma Unit), Far Rockaway, New York, in a "minimally responsive condition" and that he required assistance with all activities of daily living. Following a hearing conducted herein, the Court appointed the Petitioner, and his mother as the Co-Guardians for the Personal Needs and Property Management of respondent, an Incapacitated Person, by Order and Judgment dated February 7, 2005.

During the ensuing years, respondent was transferred to PARK TERRACE REHABILITATION AND NURSING CENTER, Corona, New York for further rehabilitation, and ultimately discharged to his residence in Great Neck, New York. At home, the Co-Guardians utilized the assistance of MAXIM HEALTH CARE SERVICES, INC. to provide full-time home health care for him.
A Nassau Visitation Lawyer said that, by Decision and Order dated September 26, 2005, the Court denied an application to transfer to the mother certain property belonging to the Incapacitated Person with leave to renew upon notice to the NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, a necessary and interested party to such application. As the Court stated in such Decision and Order, "where the co-guardians seek to transfer investment property and an interest in a business to the community spouse, as well as income, in anticipation of the incapacitated person applying for Medicaid benefits, the local department social services is a necessary party and they should be heard on the issue of such transfers being exempt from any Medicaid penalty period. Cf. Mental Hygiene Law §81.07(g)(1)(v)."
The Co-Guardians subsequently renewed their application on notice to the NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES for an Order permitting the Co-Guardians to engage in prudent Medicaid planning, and to transfer all of the assets of the Incapacitated Person to his community spouse pursuant to Mental Hygiene Law Section 81.21(b). The assets sought to be transferred consisted of the family residence (held as Tenants-by-the-Entirety); certain investment property consisting of a cooperative apartment and a condominium unit owned by respondent and located in Great Neck, New York; a 25% interest of respondent. in a closely-held family business; a life insurance policy issued by New York Life Insurance Company; the right to receive a monthly stipend; the balance of a jointly-held checking account; and several motor vehicles. In reaching its conclusion to permit the transfer to the community spouse, the Court heldb"A guardian's authority to transfer the assets of an incapacitated person to another is derived from Mental Hygiene Law §81.21(a)".

"Furthermore, in enacting Mental Hygiene Law article 81, the Legislature gave statutory recognition to the common-law doctrine of substituted judgment' (citations omitted) by expressly authorizing the transfer of a part of the incapacitated person's assets to or for the benefit of another person on the ground that the incapacitated person would have made the transfer if he or she had the capacity to act' (.

A New York Divorce Lawyer said that it was clear to the Court that based upon the care and persistent encouragement which the mother continued to provide to her husband, the financial support which the Incapacitated Person had provided to his family prior to his injury, the ongoing disability of the Incapacitated Person, and the long-term marriage of the parties (in excess of TWENTY-FIVE (25) years), the mother was clearly the "natural object of the bounty of the incapacitated person" and respondent if possessed of the ability to make such transfer, would certainly have desired that his assets be transferred to his wife, to enable her to continue to provide for their family in the marital residence. See Mental Hygiene Law Section 81.21(b)-(e). Accordingly, the transfer of assets as sought in such application was granted by this Court, with no opposition.

A Nassau County Family Lawyer said that thereafter, the Co-Guardians were successful in settling a medical malpractice action instituted on behalf of respondent in the gross amount of FIVE MILLION ($5,000,000.00) DOLLARS. After payment of attorneys' fees and disbursements, the balance of funds was distributed as follows: the sum of $1,000,000.00 to the wife in settlement of all claims for her loss of consortium and society; the sum of $200,000.00 to PARK TERRACE CARE CENTER, INC. as and for outstanding facility charges; the sum of $116,581.10 to MAXIM HEALTH CARE SERVICES, INC. as and for home health care services rendered to respondent in his home (and as a result of a lawsuit instituted by said health care agency as against respondent and the wife for unpaid invoices), with the balance of $2,921,303.20 transferred to the guardianship account established hereunder. A surety bond in this sum as surety thereon was filed by the Co-Guardians.

A Staten Island Family Lawyer said the Co-Guardians now seek authority from this Court to reimburse themselves for individual sums advanced by them and to transfer the sum of $2,121,303.20 (less allowed reimbursements) from guardianship funds to NAHAL Z. as community spouse, thereby leaving a balance remaining of $800,000.00 in the guardianship account(s). Pursuant to the Amended Stipulation and Compromise Order which was "So Ordered" dated November 21, 2008, and issued in connection with the aforesaid medical malpractice action, the within application for such allocation and distribution of the remaining settlement proceeds was permitted to be made before the Guardianship Part.

Throughout this guardianship proceeding, this Court has been impressed by the unwavering devotion of the Co-Guardians to respondent and the wife visited her husband daily while he was a resident of the skilled nursing facility, and went to great lengths to monitor his care and encourage his progress, to be an outspoken advocate on his behalf, and to ensure that every option and/or treatment was considered.

The Court recognizes the taxing nature of an unexpected and devastating incapacity, and fully appreciates the great lengths to which the wife has gone to ensure that her husband was eventually able to return home privately securing additional speech, occupational, cognitive/sensory, acupuncture, and hyperbaric therapies for his benefit, as evidenced by the bills attached to the moving papers. The Court also notes that the wife expended individual funds to purchase a van to ensure the safety and comfort of respondent while being transported; to renovate and modify the home to make such environment handicapped-accessible; to secure the services of home health aides (a portion of which cost (to wit: $116,581.18) was paid from the medical malpractice settlement, as stated hereinabove); and to retain nurse practitioners and nursing assistants to care for her husband. In addition, the wife sought professional counsel in connection with certain Medicaid issues and litigation against the closely-held family corporation. Respondent also expended personal funds for the necessary general household expenses for the family.

The Court declines to reimburse Co-Guardian, the wife for the cost of renovating the house which was previously transferred to her as community spouse pursuant to the Order of this Court dated November 30, 2005. As she received the sum of $1,000,000.00 individually from the settlement of the medical malpractice action, a portion of such sum should be utilized for the modification of the real property that is now titled to her individually.

Finally, with respect the that portion of the application seeking to transfer the remaining medical malpractice assets (with the exception of $800,000.00) to the community spouse, such application is also denied. The Court has considered the previous request and the Decision and Order granting the motion to transfer significant real estate and other assets to the community spouse in order to support her and her family during her husband's incapacity. The transfer of the remaining malpractice assets, however, does not fall within the same category.

While it is clear that the Co-Guardians are each devoted to respondent and have made certain that his significant needs are being met, the Court is concerned that two different service providers resorted to court intervention in order to receive payment for services rendered, as both the skilled nursing facility and the home health agency had outstanding charges satisfied from the malpractice settlement proceeds. While issues may have existed as to the propriety of the bill from the skilled nursing facility, the amount eventually compromised was, in essence, the outstanding principal amount. Similarly, MAXIM HEALTHCARE SERVICES, INC. had to wait a significant period of time to be paid the balance owed to them, notwithstanding the availability of substantial assets previously gifted to the wife. Therefore, the Court is hesitant to permit the transfer of additional assets of the Incapacitated Person, thus rendering him unable to pay for the cost of his own care and thereby compelling him to rely upon the discretion of others outside the jurisdiction of this Court with regard to the manner of payment and/or the timing thereof.

While the Court is not aware of any case law directly on point, it is clear that the funds allocated to respondent from the medical malpractice action (after payment of attorneys' fees, his outstanding obligations, and the sum earmarked for the wife ) were intended to and should generally encompass the future needs of the Incapacitated Person and should therefore remain in a vehicle(s) established for his benefit. See e.g., C.P.L.R. 5031(c). Based upon the profound disability of respondent, the cost of full-time assistance and supervision henceforth will be substantial — a factor which was likely contemplated in the course of settling the malpractice action. The monies recovered herein due to injuries sustained by respondent must be treated differently than those assets amassed during the course of the marriage which constituted the subject of the prior application for Medicaid planning. Based upon the genesis of such funds and the presumed intent of the litigants contributing thereto, the remaining funds should be utilized primarily for the continuing care and maintenance of respondent as opposed to being transferred to his community spouse.

Notwithstanding the foregoing, this Court is willing to consider a budget for necessary household expenses (utilities, food, insurance, etc.) and for the cost of supporting the infant child of the parties. Upon receipt and review of such budget, the Court shall consider allocating a certain monthly sum to be used for the benefit of Incapacitated Person and his family.
Alternatively, the Co-Guardians may consider whether the creation and funding of a Supplemental Needs Trust for the benefit of respondent is appropriate and desired. Counsel shall advise Chambers and the Court Examiner in writing as to whether the Co-Guardians wish to establish a Supplemental Needs Trust with guardianship funds, the form of which shall be subject to the prior approval of the Court and on notice to all necessary and interested parties, including the NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES.

Accordingly, it is ordered, that the Co-Guardians, are hereby authorized and directed to pay from the funds of the Incapacitated Person, the total sum of $431,578.11 to the wife as and for reimbursement for expenditures made from individual funds to or for the benefit of the Incapacitated Person.

If you want to apply for guardianship of a person, seek the help of a Nassau Family Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates.

Court Rules on Guardianship Proceeding

November 23, 2015,

A New York Family Lawyer said the petitioner, Delmi Y. (hereinafter referred to as "petitioner"), has filed a petition with this Court requesting that she be appointed as the guardian of her twelve-year-old nephew Orlin C. Y. (hereinafter referred to as "minor child"). The attorney for the minor child joins in the petitioner's application and requests that this Court additionally issue an Order of Special Findings which would enable the minor child to petition the Department of Homeland Security for Special Immigrant Juvenile Status pursuant to Immigration and Nationality Act §101(a)(27)(J) and 8 Code of Federal Regulations §204.11. The respondent Carmen Y. is the biological mother of the minor child. The respondent Juan C. is the biological father of the minor child.

A New York Divorce Lawyer said that in addition to the petition, the petitioner and the minor child's attorney have submitted the following: an affidavit from the minor child, a birth certificate for the minor child, a translated document signed by the minor child's mother consenting to the petitioner having custody of the minor child, an affidavit indicating the efforts made to locate the minor child's father, a document from the Ministry of the Public Attorney General of the Republic of El Salvador, and various other paperwork written in Spanish. Also provided was a Memorandum of Law, and a letter from the minor child's attorney indicating that Federal Immigration Removal Proceedings are currently pending against the minor child. This Court ordered an investigation by the Nassau County Department of Social Services (hereinafter referred to as "D.S.S.") regarding this matter. As part of their investigation, D.S.S. interviewed the minor child and the petitioner. D.S.S. provided this Court with a detailed report of the interviews and their findings.

A Westchester County Family Lawyer said the petitioner is the maternal aunt of the minor child. The petitioner currently resides in Mineola, Nassau County, State of New York. She has resided in the United States for the last nine years. The minor child currently resides with the petitioner in Mineola. He has resided with the petitioner since June 12, 2008. In his affidavit, the minor child indicates that he would like to continue living with the petitioner because she takes good care of him and he feels safe with her.

The minor child was born on January 2, 1997, in El Salvador, to Carmen Y. and Juan C. The minor child's father left the family when the minor child was only a few months old. The minor child grew up in El Salvador, living with his mother, stepfather, and two cousins. The minor child does not have any relationship with his biological father. Both parents of the minor child still live in El Salvador and are nationals of that Country.

In his affidavit, the minor child states that as he was growing up, his stepfather would punish him and his cousins regularly by hitting them with various objects and by withholding food from them. On occasion, his stepfather would require the minor child to miss school so that he could go to work with his stepfather. The minor child also reports that he was regularly threatened and beaten up by two groups of boys in El Salvador. He indicates that he would frequently stay with his grandparents in another village in order to get away from the boys.

The minor child alleges that he decided to run away from home to avoid any further discipline from his stepfather and to escape from getting beaten up by other boys. He discloses that he stole money from his mother and left home without the knowledge of his mother or anyone else in his household. The minor child states that he went to the local bus station and took a number of buses to Mexico. After arriving in Mexico, he claims that he saw people running towards the United States border and decided to go along with the strangers to enter the
United States. He recalls swimming across two rivers and almost drowning.

Once the minor child arrived in the United States, he was immediately apprehended and detained by U.S. Customs and Border Patrol Officers. The minor child was eventually brought to a group home in Bronxville, Texas. During his stay in the group home, the minor child states that he was picked on by other kids and was involved in fights. The U.S. Customs and Border Patrol began Federal Immigration Removal Proceedings against the minor child in March of 2008. Thereafter, he was released into the child custody of the petitioner, who volunteered to take care of him, pending the disposition of the removal proceedings.

Based on the above alleged facts, the petitioner and the minor child's attorney request that this Court appoint the petitioner as guardian of the minor child and issue an Order of Special Findings.

Both the Family Court and the Surrogate Court have authority to appoint a guardian regarding an infant (hereinafter referred to as "guardian of the person of an infant"). The jurisdiction of the Family Court to appoint guardians of the person of an infant is established in Family Court Act §661. Family Court Act §661, as modified as of November 3, 2008, provides as follows:

"When initiated in the family court, such court has like jurisdiction and authority to determine as county and surrogates courts in proceedings regarding the guardianship of the person of a minor or infant and permanent guardianship of a child. Such jurisdiction shall apply as follows:
(a) Guardianship of the person of a minor or infant. When making a determination regarding the guardianship of the person of a minor or infant, the provisions of the surrogate's court procedure act shall apply to the extent they are applicable to guardianship of the person of a minor or infant and do not conflict with the specific provisions of this act. For purposes of appointment of a guardian of the person pursuant to this part, the terms infant or minor shall include a person who is less that twenty-one years old who consents to the appointment or continuation of a guardian after the age of eighteen."

The jurisdiction of the Family Court to appoint a guardian of the person of an infant extends to any infant who is living in the County and State of that Court. New York Surrogate Court Procedure Act (hereinafter referred to as "S.C.P.A.") §1702, in relevant part, provides as follows:
"Where an infant has no guardian the court may appoint a guardian of his the following cases:
1. Where the infant is domiciled in that county or has sojourned therein immediately preceding the application."

This language has been broadly interpreted to include all infants residing in a particular County and State regardless of their immigration status. The Appellate Division has held that the Family Court has jurisdiction to consider a petition for guardianship of a child who is a foreign national, despite the child's illegal entry into the United States, where the Family Court is located in the County where the child is domiciled or has sojourned therein immediately preceding the guardianship petition.

S.C.P.A. §1701 permits the appointment of a guardian for an infant whether or not the parents of the infant are living. This section permits the appointment of someone other than the infant's parents as the guardian. The test which the Court must apply in making such determination is the "best interest of the child" test. However, before applying this test, the Court must make a finding that there has been abandonment, unfitness, or persistent neglect by the parents, or other extraordinary circumstances.

In light of the foregoing, this Court has jurisdiction to hear and determine the guardianship petition herein. In the case at bar, since the petitioner is not one of the minor infant's parents, and both parents are living, in order to appoint the petitioner as the guardian this Court must find that there has been abandonment, unfitness, or persistent neglect by the parents, or other extraordinary circumstances. Since neither parents are before this Court, and are not within this Court's jurisdiction (both are El Salvador nationals), this Court is left to rely on the assertions in the petition, in the minor child's affidavit, and the other various annexed documents including the D.S.S. report.

The petitioner alleges that there is no one else to take care of the minor child other than her, implying that the minor child was abandoned. It is alleged that the minor child's father abandoned him when the minor child was an infant. This Court accepts this assertion based on the fact that the minor child's biological father has absented himself from the minor child's life since birth. Regarding the minor child's mother, there has been no such abandonment. Based on the minor child's affidavit, he voluntarily ran away from his home and his mother. Hence, the minor child was not abandoned by his mother. In addition, the minor child asserts in his affidavit that his grandparents have previously taken care of him and that he liked living with his grandparents. There is no indication in the record that the minor child's mother or grandparents are unable to continue taking care of him. As such, the facts as alleged by both the petitioner and the minor child fail to establish that the minor child has been abandoned.

Neither the petitioner nor the minor child allege that his mother is unfit to care for him. The petitioner asserts in her petition that the minor child's mother has "consistently been unable to provide adequate care for the minor child." This conclusion is made without a scintilla of factual context. There is no mention of any failure on the part of the minor child's mother to provide food, shelter, care or any other of the minor child's needs. Beyond the blanket assertion by the petitioner, the petition and accompanying documents are otherwise silent regarding the minor child's mother. As such, the petitioner has failed to establish that the minor child's mother is unfit to care for the minor child.

Neither the petitioner nor the minor child allege persistent neglect by the minor child's mother. The minor child does indicate that the mother was present and remained mute during times when the minor child was being physically punished by the stepfather. The petition and the minor child's affidavit fail to outline or detail the underlying facts or circumstances which precipitated these alleged incidents. The minor child indicates that on one occasion the mother spoke up against the discipline but was then herself struck by the stepfather. The minor child also asserts that his mother would send him to stay with his grandparents to avoid contact with his stepfather. The physical discipline by the stepfather, if substantiated, would be extremely troubling; however, there is no indication that any criminal or civil remedies were sought with respect to this alleged conduct in the minor child's native Country. There is no indication that any steps were taken by anyone to address the alleged conduct. This Court is left to rely on the bare uncorroborated statements of the minor child regarding the physical punishment by his stepfather. As such, the facts as alleged fail to establish persistent neglect by the minor child's mother.

The petition and the moving papers do not allege extraordinary circumstances.The travel of the minor child to this Country does not constitute extraordinary circumstances necessitating the appointment of a guardian. The minor child's allegations of being bothered by other boys and gangs in El Salvador, although tragic, unfortunately occurs every day, in every Country, including in the United States. Notably, the minor child even reports being bothered by and fighting with other boys while in the group home here in the United States. Said allegations also do not constitute extraordinary circumstances warranting the appointment of a guardian.
In addition to the foregoing, there are glaring inconsistencies between the affidavit of the minor child and his statements to the D.S.S. representative. These inconsistencies lead this Court to doubt that the minor child arrived in the United States on his own by sheer happenstance. The minor child gives two incongruent reasons for his running away from home and subsequent travel to the United States. In his affidavit, the minor child states that he ran away from home to avoid punishment from his stepfather and being bothered by various groups of boys. He states that while in Mexico, he decided to run across the border into the Unites States because he saw other people doing so. However, in his interview with D.S.S., the minor child states that the reason he ran away from home and came to the United States was because he heard interesting stories about the United States from his uncle, who lives in Texas. Running away from home and ultimately traveling to the United States to avoid alleged punishment by his stepfather and being bothered by various groups of boys is dramatically different than intentionally coming to the United States because of hearing interesting stories.

Nevertheless, this Court finds that neither explanation would justify the appointment of a guardian in this matter. In the first instance, assuming the minor child ran away from home to avoid punishment and the other boys, it is inexplicable why running away from home for these reasons would take him on a journey across two borders and two Countries. In the second instance, while hearing interesting stories about the United States is a valid justification for engaging in the appropriate legal immigration process, it is certainly not a valid justification for irresponsibly leaving home at the tender age of eleven, without the approval or knowledge of his mother, to embark upon a spontaneous voyage to a foreign land. Moreover, even if the minor child's unsubstantiated reports of corporal punishment by his stepfather and encounters with other boys are accurate, it is unclear and unstated why the minor child could not simply remain with his grandparents in El Salvador. No information was provided to this Court about any relief sought to remedy these complaints in El Salvador.

, it is well established that the Family Court lacks jurisdiction over custody proceedings brought by aunts, uncles, and grandparents or any other persons seeking guardianship of a minor who resides with them so that they can enter such minor in school, or acquire insurance coverage for the minor, or have authority to sign for possible medical service on behalf of the minor, or for other matters for which proof of their authority to act on behalf of the minor is required. The Family Court may only appoint guardians when the subject children are already within the Court's jurisdiction due to a "justiciable dispute or custodial controversy."

In the case at bar, the minor child's mother consents (in her translated affidavit) to the petitioner having "custody" of the minor child. The minor child's mother states that the reason for her consent is that she would like her sister to provide for the "legal, scholastic and medical costs" of her son. Aside from the failure of the minor child's mother to actually consent to the guardianship, the reasons stated by the minor child's mother for the guardianship are insufficient as a matter of law to justify the appointment of the minor child's aunt as a guardian; i.e., for legal, scholastic and medical concerns. Furthermore, notably missing from the mother's translated affidavit is any assertion that she is unable to care for the minor child. Neither is there any mention of the alleged physical discipline by the stepfather or the other grounds cited by the minor child for his unannounced and unexpected departure from her home and from El Salvador. The minor child's mother fails to corroborate any of the allegations of her son.
In addition to the petitioner's request for guardianship, the minor child's attorney has requested that this Court issue an Order of Special Findings. As specifically indicated by the minor child's attorney in his letter to this Court, the purpose of the minor child's request for an Order of Special Findings is so that same may be used by the minor child in defense of Federal Immigration Removal Proceedings currently pending against him.

In 1990, the federal government enacted legislation as part of the Immigration and Nationality Act to give undocumented children, under the jurisdiction of a juvenile court, the ability to petition for "Special Juvenile Immigrant Status" and obtain permanent legal residence in the United States. Under 8 U.S.C. 1101(a)(27)(J) and 8 Code of Federal Regulations 204.11(a), a "special immigrant" is an immigrant who meets all of the following criteria:

1. has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency, while the alien was in the United States and under the jurisdiction of the court; 2. deemed eligible by the juvenile court for long term foster care; 3. for whom a judicial determination has been made that it would not be in the alien's best interests to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; 4. where the subject is under 21 years of age; 5. where the subject is unmarried.

An Order of Special Findings by the Family Court is a prerequisite to a minor child receiving Special Juvenile Immigrant Status. Therefore, in order for this Court to grant the minor child's request for an Order of Special Findings the foregoing criteria must be satisfied. However, where Federal Immigration Removal Proceedings have been initiated prior to the application for a guardianship, the Family Court no longer has jurisdiction to hear, consider or grant an Order of Special Findings. Otherwise, the Family Court would be improperly used as a last resort forum to defeat Federal Immigration Removal Proceedings.

The petition for guardianship in this matter was filed on September 22, 2008. The Federal Immigration Removal Proceedings against the minor child were initiated in March of 2008. Since the Federal Immigration Removal Proceedings were filed six months prior to the instant guardianship petition and request for an Order of Special Findings, this Court does not have jurisdiction to consider the minor child's request for an Order of Special Findings.

This Court finds that the petitioner has failed to establish the grounds required for her appointment as guardian of the minor child herein. As such, the minor child's request for the issuance of an Order of Special Findings is hereby rendered moot. Moreover, as discussed above, this Court does not have jurisdiction to entertain the minor child's request for an Order of Special Findings.

Accordingly, for the aforesaid reasons, it is ordered that the petition for the appointment of a guardian and the request for an Order of Special Findings is hereby denied. This constitutes the opinion, decision and order of this Court.

If you know someone in need of legal help, the Nassau County Family Lawyers and Nassau County Custody Attorneys at Stephen Bilkis and Associates will be willing to help, they are competent and expert in the field of family law and proceedings. They can visit our offices located around New York for free legal assistance.

Petitioner Claims Respondent Failed to Provide Proper Services in Guardianship Case

November 21, 2015,

A New York Family Lawyer said the simple description of the cause of action in this endorsed complaint, "failure to provide proper services," belies the difficult legal and human issues that are presented by this claim by a daughter, on behalf of her incompetent mother, against the brother and wife who took the mother in, and against the agency that provided home care services.

Plaintiff DJ is the guardian of the person and property of SN, who is now 75 years old and resides in River Manor Care Home. As described in the order appointing Ms. DJ to serve as her mother's guardian, mother SN "suffered a stroke that has rendered her aphasic she has partial paralysis, can no longer swallow. she is nonambulatory her cognition is nonexistent and she suffers from hyperthyroidism and vascular dementia." From February 1998 until October 2001, mother SN resided with her son, defendant RN, and his wife, defendant JN. During that period, she received home care services from defendant Rockaway Home Attendant Services, Inc., a licensed home care services agency. In October 2001, mother SN was hospitalized for a month, and then transferred to the nursing home.

A New York Guardianship Lawyer said that Ms. DJ alleges that mother SN was neglected by RN and JN and by Rockaway in that, among other things, she was not properly medicated, and was not given adequate food and water, with the result that she suffered serious physical harm. Ms. DJ was supported at trial in these charges by two sisters, Alice Gordon and Linda SN-Watts. Of course, Mr. and Ms. SN and Rockaway deny the allegations. The Newtons contend that this lawsuit is a manifestation of guilt on the part of Ms. DJ and her two sisters because they did not sufficiently attend to their mother when she was in a position to appreciate their attendance.

A Queens Family Lawyer said that before addressing the merits of this dispute, there are two threshold matters that require resolution: the status of the suit as against a defendant named as "Faye Baker," who has not appeared, and a motion to dismiss by Rockaway based upon the failure of Ms. DJ, who is unrepresented by counsel, to designate her representative capacity in the summons with endorsed complaint.
Although known to Ms. DJ and Mr. and Ms. SN as "Faye Baker," it appears that the name of the home attendant who assisted mother SN is Shazia Bakaralli. There are two affidavits of service, but neither is sufficient to establish jurisdiction over Ms. Baker/Bakaralli. An attempt to serve her at her purported residence was unsuccessful, the affidavit showing that the process server was told that "Faye Baker" did not reside at the address, and neither affixation nor mailing having taken place. Service was attempted twice at the office of defendant Rockaway, but the testimony at trial was that the attendant was no longer employed by Rockaway when service was attempted, and that no one from Rockaway delivered the summons with endorsed complaint to her. The claim is dismissed as against "Faye Baker," without prejudice to refiling; this opinion will not address in terms the viability of a claim against the home attendant personally.

A Long Island Family Lawyer said that the summons with endorsed complaint is dated January 7, 2003, based upon an application for a pro se summons of the same date. "DJ" is designated as plaintiff. An order appointing guardian of the person and property of SN was signed by the Honorable Ariel E. Belen on November 12, 2002, and the commission issued on January 30, 2003 after Ms. DJ filed a suitable bond. "In the absence of some express limitation, a cause of action in favor of an incompetent, arising either under the common law or conferred by statute, may be prosecuted by a special guardian." Here, Justice Belen's order gives Ms. DJ the power to "defend or maintain any civil proceeding" on behalf of SN.

Whether the addition to the caption of Ms. DJ's representative capacity is deemed an amendment of the summons and pleadings, or the addition or substitution of a party, it is supported by the CPLR and case law.

No possible prejudice can result to defendants. A document introduced into evidence by Rockaway summarizes a telephone conversation on December 17, 2002 between Ms. DJ and a Rockaway representative, during which Ms. DJ apparently said that she would be filing a claim based upon neglect of her mother. The answer in person filed by HM, Executive Director of Rockaway, although ineffective as an appearance by the corporation, shows that Mr. HM understood on January 28, 2003 that the action might relate to the services that Rockaway rendered to mother SN. When the case was first on the calendar on February 21, it was conferenced both by this Judge's court attorney and separately by volunteer mediators. More than three months before the trial on June 3, therefore, the parties knew that Ms. DJ was complaining about the neglect of mother SN.

Recognizing, however, that Ms. DJ may pursue a claim on behalf of mother SN does not mean that mother SN has a viable claim against either her son and daughter-in-law or against the contractor that provided home care services. Those issues involve questions of duty and breach that do not appear to have been previously addressed by a New York court.
Again, however, removal of any bar of immunity does not establish that Mr. SN or his wife breached any duty to mother SN. "There was, at common law, no legal duty upon a child to support his parents."

There have been statutes imposing liability on a child for a parent's support, which could be enforced by criminal or civil proceedings, including an action by the needy parent, but the most recent were repealed in the mid-1960s.

The last of the statutes requiring a child to support a needy parent were repealed in connection with the then new Medicare program, in part to lift, what was deemed, a "burden of support." And so, "absent agreement or other definitive obligation, this State, as opposed to some others does not hold a child liable for the support of his or her parent." Moreover, it is not at all clear that the statutory duty to support that once existed would encompass a duty to provide needed care or medical attention.

In the somewhat analogous arena of parental liability to a child, the Court of Appeals has held that "a child does not have a legally cognizable claim for damages against his parent for negligent supervision." In addition to the "prevention of family discord and the correlative concern to preserve the family's resources for the aid of all its members", the Court noted other policy considerations that weighed against allowing the cause of action: "the potential for abuse of a negligent supervision claim when brought in a retaliatory context between estranged parents"; the "difficulty of judicial delimitation, either by court or by jury, of the bounds of the asserted right to supervision"; a danger of "circumscrib[ing] the wide range of discretion a parent ought to have in permitting his child to undertake responsibility and gain independence"; the "different economic, educational, cultural, ethnic and religious backgrounds which must prevail"; and recognition that supervision is uniquely a matter for the exercise of judgment.
The Court subsequently extended its reasoning to preclude a cause of action for negligent supervision "between unemancipated minor siblings." But lower appellate courts have allowed the claim against grandparents with temporary custody and control, and even against a parent who voluntarily assumed a duty to supervise a child in a particular activity. These latter results are consistent with the reality that the "law typically recognizes liability for breach of supervisory duty for those who afford child care in the shoes of parents" and with broader principles of tort law that permit recovery for breach of a duty voluntarily assumed.

And so, even without compensation, when defendants undertook to control a young child and provide care for her, they became responsible for her injury through their negligence. The law is clear that, even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care.

In other states, assumption of responsibility for the care of an elderly person can create a common-law duty that is breached when neglect results in harm, and supports criminal liability either under general criminal statutes.

In New York, until recently, there was no statute that specifically penalized the causing of harm to an elderly person. Effective November 1, 1998, as will be described more fully below, it is a crime to endanger the welfare of an elderly person, as defined in Penal Law §§ 260.32 and 260.34. Before that, no reported decision found by this court applied the general criminal law to harm caused to an elderly person. There are numerous decisions, however, in which criminal liability was based upon harm to a child by a person not the child's parent who assumed responsibility for the child's care, even if only for a short period of time. More than a century ago, a "defendant, having the charge of the infant child named, did unlawfully and feloniously suffer and permit the death of the child, by willfully neglecting, without lawful excuse, to supply it with proper food, clothing, and care."

The statute defines a "caregiver" as a "person who (i) assumes responsibility for the care of a vulnerable elderly person pursuant to a court order; or (ii) receives monetary or other valuable consideration for providing care for a vulnerable elderly person"; and defines a "vulnerable elderly person" as a “person sixty years of age or older who is suffering from a disease or infirmity associated with advanced age and manifested by demonstrable physical, mental or emotional dysfunction to the extent that the person is incapable of adequately providing for his or her own health or personal care."

This court has little difficulty in concluding that a child who assumes responsibility for the care of a parent who is limited by age or illness, or both, owes a duty to the parent to use reasonable care, and will be liable for harm caused by the failure to use reasonable care by affirmative act or omission. The conclusion is supported by "common concepts of morality and logic.
It is unnecessary and would, perhaps, even be inappropriate, for this court to generally define the circumstances that would constitute an assumption of duty or might qualify the parent as sufficiently "dependent" or "vulnerable." Here, mother SN resided with her son and daughter-in-law, and, as will appear, they took control of all of her income, presumably to use for her benefit. Because of her physical and mental condition, mother SN was progressively dependent upon RN and JN, and upon the home care attendant that she herself could not effectively supervise, for all of her medical, nutritional and other personal needs. Also, although not determinative, and without suggesting that they acted inappropriately, there was testimony that RN and Joan inhibited or discouraged participation by RN's siblings, with the potential consequence at the least of mother SN's further dependence on RN's and Joan's care.

The court is mindful that many of the considerations that led the Court of Appeals to refuse to recognize a child's claim for negligent supervision by a parent would resonate as well on a parent's claim for neglect by a child. And this court is well aware that the individuals before it are siblings, necessarily exercising their own feelings and conflicts as they argue the interests of mother SN. But the court believes that these concerns can be ameliorated by careful attention to the many factors balanced on a determination of breach of duty.

The New York Legislature has declared that the "provision of high quality home care services to residents of New York state is a priority concern", and mandated the regulation of home care services as they are provided by, among others, licensed home care services agencies and certified home health agencies. When home care services are provided pursuant to the Medicare or Medicaid programs, there is additional regulatory involvement by federal and local authorities, including the United States Department of Health and Human Services, the State Department of Social Services, and the City Human Resources Administration (HRA).

Generally, the institutional custodian of a person with physical or mental limitations owes a duty of reasonable care to protect the person from injury, with the "degree of care owed. commensurate with the [person's] capacity to provide for his or her own safety."

Relying upon these authorities, the Second Department has held that home care agencies may be liable when an elderly person or a person with a disability suffers traumatic injury because a home care attendant was either not present when she/he should have been or was not sufficiently attentive.

Virtually all of the decided cases have involved traumatic injury. "The overwhelming majority of civil cases against nursing homes arising from the treatment of residents involve falls." But in Goldberg v Plaza Nursing Home Comp., the Court recognized a claim based on negligence when the failure of nursing home personnel to respond to a patient's call for help may have resulted in confusion, agitation, and cardiac arrest.

By statute, New York makes a residential health care facility liable to any patient for the deprivation of "any right or benefit created or established for the well-being of the patient by the terms of any contract," or by any federal or state statute, code, rule or regulation; "as an affirmative defense," the facility may establish that it "exercised all care reasonably necessary to prevent and limit the deprivation and injury." The statute provides for "minimum damages" of 25% of the "daily per-patient rate of payment" established for the facility, as well as attorney fees.

"The clear intent of this statute was to expand the existing remedies for conduct that, although constituting grievous and actionable violations of important rights, did not give rise to damages of sufficient monetary value to justify litigation." The "statutory basis for liability is neither deviation from accepted standards of medical practice nor breach of a duty of care," but rather the "deprivation of a right conferred by contract, statute, regulation, code or rule." A cognizable cause of action can be based on the failure to prevent the development of pressure sores and the failure to maintain adequate nutrition.

Like this statute, the developing common law should recognize the "vulnerability and dependence of abused or neglected elders, especially those whose infirmities ”mental or physical” leave them at the mercy of their caregivers and those who are physically isolated in their own homes or the homes of their relatives." There is no reason in principle to limit the duty of a home care provider to the prevention of traumatic injury, thereby excluding liability for longer-term neglect that can have even more serious consequences. A provider should at least be liable for the failure to discharge those duties that it contractually undertook to discharge.
Prior to moving into the second-floor apartment in the building owned by her son and daughter-in-law (Mr. and Ms. SN lived in the first-floor apartment), mother SN was receiving home care services from United States Home Care three days each week, four hours each day.

Rockaway's home attendant task assignment sheet for mother SN dated February 13, 1998 shows that, initially, home care services were provided by Rockaway on the same schedule. The assignment sheet noted mother SN's limited mobility and forgetfulness.

In medical requests for home care dated November 4, 1999, November 14, 2000, and February 22, 2001, mother SN's doctor recommended increases in home care services. The 2001 request states:
"Presently, Mrs. SN is receiving 4 hours a day 7 days a week. During the hours of 1 PM and 7 PM, Mrs. SN is home alone which makes it quite dangerous for a woman with her mental and physical limitations. Please increase her hours that she would have eight hours a day, 5 days a week and 4 hours on Saturdays and Sundays."

Mother SN's home care services were increased to the level recommended by her doctor. According to Ms. DJ, these services were paid for by Medicare and Medicaid, but mother SN was required to pay $24 each month.

Mother SN moved at some point from the second-floor apartment to the first floor, where she was given the master bedroom with bath in Mr. and Ms. SN's apartment. Thereshe stayed until she was hospitalized in late October 2001. Ms. DJ contends that neglect by Mr. and Ms. SN and Rockaway in failing to properly medicate, feed and hydrate mother SN caused the serious deterioration in her condition that required hospitalization. Ms. DJ presented hospital records apparently from New York Methodist Hospital and a statement from a Dr. Alan P. Goldman, but the hospital records are not certified, and the doctor's statement is not sworn to or affirmed. None are admissible as evidence to establish mother SN's physical or mental condition.
Because Ms. DJ is not represented by counsel, it is not surprising that she has not presented evidence in admissible form. Her pro se status, however, does not relieve her of any requirement that there be expert medical opinion in admissible evidentiary form to establish mother SN's physical and mental condition and any causative factors that may have been contributed by defendants.

Ms. DJ, her husband, and her two sisters, Alice Gordon and Linda SN-Watts, testified to occasions when they visited mother SN and found her alone, or telephoned without response. Ms. DJ testified that she visited her mother every other week, twice each week, once on a weekday and once on the weekend. She found her mother alone at times that, she believed, the home attendant should have been there, but Ms. DJ did not quantify these incidents or specify when they occurred. Ms. Gordon testified to four visits during the year 2000 when she visited on a weekday during the home attendant's scheduled hours and found her mother alone. She told of a Saturday visit when the home attendant should have been present, but she found her mother alone in circumstances that can be described as unpleasant and degrading. Ms. Gordon would also find her mother alone in the evening before Mr. and Ms. SN returned from work, having obtained the key from the home attendant, who lived nearby. Ms. SN-Watts testified to visits twice each month, and to finding her mother alone approximately six times. It is not clear that these occasions were during the home attendant's hours. All three sisters testified that Mr. and Ms. SN discouraged visits and placed restrictions that prevented the sisters from doing more for their mother.

In addition to the home attendant's absences, both Ms. DJ and Ms. Gordon were concerned about their mother's eating. Mother SN was "always hungry," but she would be found with cold food on a tray. Ms. DJ acknowledged that mother SN could be difficult about food and that, as her condition worsened, it was necessary to put food and her medications in her mouth. The sisters spoke to the home attendant about their concerns. After mother SN was hospitalized, Ms. DJ discovered that her $120/month food subsidy had gone unused to the extent of a $370 credit.

Ms. DJ testified that she also learned when her mother was hospitalized that mother SN had not urinated in a week because of dehydration, and that she had not been given her thyroid medication for six months. But Ms. DJ introduced no admissible evidence of mother SN's medical condition. The issue of the medications is in any event complicated, because of the restrictions placed on a home attendant's authority to medicate a client. The medication agreement form that mother SN signed at the inception of the services states that she was aware that home attendants "do not administer medications. However, if medications are prepoured, they would assist the client by handing the container to the client at the appropriate hour."

Mother SN was receiving on a monthly basis a Social Security benefit of $573, a pension payment of $74 and a food stamp subsidy of $120. At first, she maintained a joint bank account with Ms. DJ, but at some point, apparently at the bank's suggestion, the account was changed or replaced by an account with Ms. SN. Mr. and Ms. SN apparently used some money that mother SN received on the death of a son to assist in the purchase of the two-family house in which they all lived. Ms. DJ acknowledged that she agreed to Ms. SN's taking responsibility for mother SN's financial matters, and mother SN apparently understood and agreed to the circumstances of her moving in with her son and daughter-in-law. The court does not understand Ms. DJ to be alleging any serious financial impropriety on the part of Mr. and Ms. SN. Rather, Ms. DJ suggested that the additional income caused Mr. and Ms. SN to keep mother SN with them, even though they were not able or willing to properly care for her.

Ms. DJ testified to bruising on mother SN's upper arms, and Ms. SN-Watts said her brother had once told her mother SN had fallen when the home attendant was not present. However, all acknowledged that mother SN is a large woman with progressively limited mobility as her physical and medical condition deteriorated. It does not appear that any of the sisters suspected abuse or intentional mistreatment, and the court does not understand Ms. DJ to be alleging any. The court is satisfied, having seen and heard from Mr. and Ms. SN, that nothing like that occurred.

The three sisters testified that they spoke to Mr. and Ms. SN about the home attendant's absences and their other concerns, but they were assured that there was no need for worry, and were discouraged from complaining because the Newtons were reluctant to look for another home attendant. Ms. DJ did call Rockaway twice, but, because of the Newtons' urging, she only inquired about services and schedules, rather than making a complaint. Ms. Gordon also called Rockaway after the unpleasant Saturday incident.

As might be expected, much of the testimony of the three sisters or its significance was disputed by Mr. and Ms. SN and Rockaway. The Newtons dispute the sisters' accounts of regular visits, and dispute their contention that visits were discouraged. To the contrary, the Newtons claim that they urged the sisters to visit more often, but that they received "limited cooperation" from the sisters. The Newtons also dispute that the sisters complained to them about the home attendant's absence, contending that, in any event, the sisters would visit at times when the home attendant was not scheduled to be there. According to the Newtons, it was not until after mother SN was hospitalized, when the doctors questioned whether she had been receiving her medications, that anyone complained about the home attendant's absence. The Newtons say that sister Linda even complimented them on mother SN's care.

As for the home attendant, the Newtons considered her "not the best" but "pretty good." Mr. SN acknowledged that he, too, had telephoned and not received a response, but noted that the home attendant did food shopping and ran errands as part of her duties. Both Mr. and Ms. SN stressed that, had the home attendant or Rockaway not performed, they would have taken action. They saw no sudden deterioration in mother SN's condition, but rather the effects of a progressive debilitating illness over the four years mother SN was with them.

Mother SN could also be "stubborn" or "uncooperative" at times.

HM, Rockaway's Executive Director since April 2000, testified on its behalf. Rockaway employs approximately 1,000 home attendants, and provides home care services under contract with New York City's Human Resources Administration to approximately 200 Medicaid recipients. The home attendants receive 44 hours of training and are "supervised" by a nurse. Consistent with the medication agreement form, described above, Mr. HM stressed the home attendant's limited involvement with the client's medications. Mr. HM explained that the initial home attendant task assignment sheet for mother SN was prepared in accordance with HRA requirements after an in-home assessment by a registered nurse, but that HRA determined the level of service. Mr. HM also testified that there was a reevaluation and summary report by a nurse every six months, again in accordance with HRA requirements. However, the file that Rockaway introduced as mother SN's complete file contains only one nurse's supervisory visit report, detailing a visit on August 14, 2001. The report will be discussed below.

Mr. HM described a computerized time-tracking system for the home attendants, recording the time of telephone calls from the client's premises when the home attendant arrives and departs. The time records for mother SN's home attendant indicated no problems, but, of course, the system only provides assurance as to the home attendant's presence at the starting and ending times. Mr. HM also testified that, until a December 2002 telephone call from Ms. DJ, Rockaway received no complaints about the home attendant's absence during her scheduled hours or about the quality of her services.

Mother SN's file also contains a client contact record that summarizes monthly "calls," presumably by telephone, by a "personnel specialist" to the client's premises. The form does not indicate to whom the caller spoke, but records whether or not the "client and/or family" is satisfied with the service and the home attendant. The client contact record from mother SN's "complete" file shows monthly contacts from July 2000 through November 2001, during which the caller noted that the client was doing "well" or "fine" and was "happy" or "satisfied" with the home attendant. The client contact record is problematic, however, because there is evidence that one of the entries may have been falsified. The final entry is dated November 12, 2001, and indicates satisfaction with the home attendant and the service and that the "client and H/A doing fine." But the file also contains a client update form that states that mother SN was hospitalized at Methodist on October 23, 2001 and that date was the last date of service to the client.

The medical opinions contained in the nurse's supervisory visit report on the August 2001 visit are probably admissible as part of Rockaway's business records. In any event, the report was introduced by Rockaway, and at the least would show notice to Rockaway of the information and opinions stated. The report's general conclusion is that the "client needs assistance with all activities." The report notes no "evidence" of, among other things, bedsores/skin lesions, poor nutrition, emaciation, or dehydration, and recommends a continuation of the current level of care." The report is somewhat problematic in that it notes self-endangering behavior, but for "action taken and recommended follow up" states none at this time. The report also notes that the "client lives alone in apt on 2nd floor" and "needs the assistance of HA with all activities to ensure safety." Nothing in the report indicates that any consideration was given to mother SN's safety during the times when the home attendant was not present. The nurse indicated a next visit in November, but apparently mother SN was hospitalized before another visit.

In assessing whether Mr. and Ms. SN or Rockaway breached a duty of reasonable care, any alleged failure to properly medicate mother SN must be set aside. There is no direct evidence that mother SN did not in fact receive her medications, nor any admissible evidence that would support the inference that she was not properly medicated. The court must note, however, that, had there been such evidence, Rockaway's reliance on the limited authority of home care attendants with respect to medications would not relieve it of all responsibility for the consequences. With awareness of an elderly person's failure to take medication, whether as a result of stubbornness, forgetfulness, difficulty swallowing, lack of preparation by a relative, or any other reason, reasonable care would require some action, and no medical evidence or other expert evidence would be necessary for a factfinder to so conclude.

With respect to any alleged malnutrition or dehydration, again, there is no admissible evidence that mother SN suffered from these conditions. Moreover, as to Mr. and Ms. SN, there was no expert testimony that "physical manifestations of dehydration and undernutrition" would be "readily apparent." Expert testimony would be even more crucial to any claim that the Newtons should have known that mother SN was not receiving her medications, absent direct evidence. Moreover, accepting the testimony of Ms. DJ and her sisters as to the frequency of their visits, if there were any "readily apparent" signs of malnutrition, dehydration, or failure to medicate, they, too, presumably would have seen them and they would have taken action.

Rockaway stands on different footing. Although the Newtons were "not in the class of individuals either possessing or under a legal obligation to procure" specialized medical knowledge, the same cannot as readily be said of Rockaway's nurses or even its home attendants. An exploration of the issue must await a more appropriate case, one in which there is medical evidence that the condition existed, as well as a showing as to the regulatory requirements and limitations imposed on home care services.

As to the alleged absence of the home attendant during scheduled hours, neither medical nor other expert testimony is required when there is a "failure to provide that level of supervision called for in the treatment plan." Based upon all of the evidence, the court concludes that there probably were occasions on which the home attendant was not present with mother SN when she should have been, although the court is not convinced that the Newtons understood that a problem existed. The real question, however, is harm. Unlike the cases in which a traumatic injury occurs during the home attendant's absence, there is no link here between any one or combination of absences and any consequence to mother SN. Only the Saturday incident that Ms. Gordon testified about would qualify as evidence of discomfort or indignity. But, without mother SN's testimony, it is difficult for the court to assess how she might have perceived the situation at that time, or generally when she was left alone.

Mother SN was apparently alone often, not only when the home attendant was absent during her scheduled hours, but also at those times when her attendant was not scheduled and the Newtons had yet to return from work. Considering all of the evidence, the court sees a serious question as to whether the Newtons and Rockaway "through the conduct of its employees," including the home attendant, either failed to recognize that mother SN required a greater level of care, at home or elsewhere, or to take appropriate action in response.

In considering whether the Newtons or Rockaway breached a duty of reasonable care to mother SN in their assessment of an appropriate level and locus of care for mother SN, the factors to be weighed differ somewhat because of their respective roles. The policy concerns articulated by the Court of Appeals in deciding not to recognize a cause of action by a child against a parent for negligent supervision are, of course, most pertinent when the duty of the Newtons is at issue. Concerns about cultural differences, economic realities, family and other demands, and the elusive qualities of judgment are present here as well. These factors are particularly difficult to weigh by strangers when the choice might be between continued care at home and institutionalization.

Under Mental Hygiene Law § 81.22 (a) (9), a guardian is given the power to "choose the place of abode" of the incapacitated person, but "placement of the incapacitated person in a nursing home or residential care facility or other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person." That decision is made in the context of a "clear statutory mandate that the incapacitated person's preferences, wishes and desires should be given great weight in light of the incapacitated person's functional level, understanding and appreciation of her functional level."

Moreover: "A guardian's performance in money matters can be watched and evaluated in objective terms. This is not so in family matters. Only under careful judicial scrutiny should guardians be allowed to tamper with family relationships in the name of the ward's best interest." These onsiderations are highly significant when we do not have any evidence of the wishes of mother SN, and the question is raised in a civil action on her behalf against the son and daughter-in-law who watched over her, perhaps imperfectly, for four years of progressively debilitating illness.

Whether it is the Newtons' or Rockaway's conduct that is being evaluated, to the extent that the alleged breach of duty involves improper assessment of mother SN's mental and physical condition, rather than "common sense and judgment," expert testimony is required. Beyond that, particularly with respect to Rockaway, and subject to regulatory requirements, "the evaluation of the appropriate level of supervision implicates the professional standard of care and, as such, must be proven by expert testimony." The issue is the "standard of care customarily exercised by similar facilities in the community."

There is a "complex, multifaceted reality of providing personal care services to those in need," and a "home care assessment requires complementary analyses and opinions from individuals with different fields of expertise." In this case, the court has no information as to the availability or cost of additional care for mother SN in the home, the practical availability of financial resources in the family or through government subsidy, or the alternatives to home care and the practical and financial availability of those alternatives.

The most that can be said on this record, and in the exercise of "common sense and judgment," is that the Newtons and Rockaway failed to see that mother SN might require additional care, and, therefore, failed to make a fuller assessment of her needs and the means for meeting them. For Rockaway in particular this is more than it should find satisfactory. But this court cannot know what an appropriate conclusion to such an assessment would have been, or what mother SN might have thought of it. The court is confident, however, without the assistance of expert testimony, that she would not have chosen the discomfort and indignity she suffered on occasion when she was left alone. Although a monetary award for such consequences might well be justified under the law, the novelty of the issues and factual uncertainties caution against it in this case.

Judgment is awarded to defendants, dismissing the claim against them.

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Plaintiff Asks Court for Order for Protection for her Three Children

November 20, 2015,

A New York Family Lawyer said that on October 15, 1993, this Court issued a permanent order of protection directing the defendant to stay away from the complainant and to refrain from attempting to contact her. The People now move for an order amending the order of protection to include the complainant's three children, two of whom are the defendant's biological children.
The defendant was charged with Aggravated Harassment in violation of Penal Law 240.30(1) and Criminal Contempt in the Second Degree in violation of Penal Law 215.50(3) in an information bearing index number 19402/93. The complainant alleged in her supporting deposition annexed to the information that the defendant had made approximately twelve telephone calls threatening to kill her and to kill her children during the period from August 13, 1993 to September 3, 1993.

The defendant was charged with an additional violation of Penal Law 215.50(3) under index number 21297/93. The complainant's supporting deposition annexed to the second information alleged that the defendant had made approximately twenty-five telephone calls during a three day period from September 7 through September 9, 1993, threatening to kill her, and that these calls were made in violation of a Family Court temporary order of protection dated August 17, 1993.

A New York Divorce Lawyer said that the District Court temporary order of protection was issued on September 10, 1993. Both temporary orders of protection ordered the defendant to stay away from and to refrain from contacting the complainant and her children.

A Brooklyn Family Lawyer said that on October 15, 1993, the defendant entered a plea of guilty to Aggravated Harassment and Criminal Contempt in the Second Degree, and was sentenced to concurrent terms in the Nassau County Correctional Center of ninety days on the first count and thirty days on the second count, as well as to an $85.00 mandatory surcharge and $5.00 crime victim assistance fee on each count.

At the time of sentencing, the Court also issued a permanent order of protection directing the defendant to stay away from the complainant and to refrain from contacting her, in response to the People's application therefor. The People neglected to request inclusion of the children in the protective order at that time.

The People now wish to amend the order of protection, three days before the defendant is scheduled to be released from jail, to include a provision preventing the defendant from contacting the children, contending that this omission was an oversight which may be corrected by the Court.

A Bronx Family Lawyer said the defense maintains that CPL 430.10 proscribes the Court from changing the order of protection once the term of the defendant's sentence has commenced, and further that the Court may not amend the order because the defendant would not have entered into the plea had he known the protective order would extend to the children.

The issues thus presented are whether the Court is authorized to amend the order of protection at this stage in the proceedings, and if so, whether such amendment is warranted under the facts of the case.

The Court finds that it does have jurisdiction to amend the permanent order of protection issued herein under the specific circumstances of this case.

CPL 530.12(5) provides in pertinent part, "Upon conviction of any crime or violation between spouses, parent and child, or between members of the same family or household, the court may in addition to any other disposition, including a conditional discharge or youthful offender adjudication, enter an order of protection. The language of the statute does not limit the entry of an order of protection to the time of sentence, but instead makes the defendant's conviction a prerequisite to its issuance.

An order of protection is neither a sentence of imprisonment, as contemplated by CPL 430.10 and CPL Article 70, nor is it an authorized disposition of a criminal proceeding [159 Misc.2d 589] under Penal Law Article 60. Rather than being punitive in nature, the purpose of an order of protection is to ensure the safety of the victims of family offenses or other crimes by limiting the defendant's contact with them. Its issuance is not part of the penalty which is imposed upon a defendant convicted of a crime, and does not impinge upon a defendant's interest in the finality of criminal proceedings. Cf., People v. Minaya, 54 N.Y.2d 360, 445 N.Y.S.2d 690, 429 N.E.2d 1161 (1981), cert. den., 455 U.S. 1024, 102 S.Ct. 1725, 72 L.Ed.2d 144. Accordingly, CPL 430.10, which proscribes the court from changing, suspending or interrupting a defendant's sentence once the term of the sentence has commenced, is inapposite to the amendment of protective orders.

Similarly, defendant's contention that inclusion of the children in the protective order is barred because it was not part of the plea agreement is without merit, since an order of protection may be issued independently of a plea agreement. People v. Oliver, 182 A.D.2d 716, 582 N.Y.S.2d 265 (2d Dept.1992).

Whether an application to amend a permanent order of protection may be granted by a criminal court depends upon the reason the application has been made. The powers and jurisdiction of the District Court are limited to those which have been "expressly conferred by the Constitution and by the legislature pursuant to the authority of the Constitution." Total Comfort, Inc. v. Alfred Benzenberg, Inc., 75 Misc.2d 1009, 349 N.Y.S.2d 938 (Dist.Ct., Nassau Co.1973). It must be noted that Article 530 of the Criminal Procedure Law authorizes the criminal court to issue a permanent order of protection upon a defendant's conviction of a family offense, but does not expressly authorize the court to reconsider and modify such order. Article 8 of the Family Court Act, on the other hand, does contain an express provision authorizing the family court, after a hearing, to reconsider and modify an order of protection for good cause shown. See, FCA 844. The omission of a comparable provision in the Criminal Procedure Law may signify a legislative intent that such relief instead be sought in the family court, which is better equipped to monitor and adjust such orders in family offense situations.

However, the Court retains the inherent power to correct errors, omissions and oversights made at the time of issuance of its records and judgments in the furtherance of justice. See, People v. Minaya, supra, 54 N.Y.2d at 365, 445 N.Y.S.2d 690, 429 N.E.2d 1161; 29 N.Y.Jur.2d, Courts and Judges, § 463. Therefore, if the purpose of an application to amend a protective order is to correct an omission or oversight made at the time of issuance of the order, the criminal court retains the authority to grant the application. If, however, the application seeks new relief not originally contemplated or intended at the time of issuance of the order, such amendment would exceed the scope of the statutory grant of authority of the criminal court. It must be noted that an application for new relief could always be made in the family court.

The Court finds that the instant application seeks to correct an oversight made at the time of issuance of the permanent order of protection, and therefore is within the Court's inherent power to consider. Both temporary orders of protection extended to the children, and the Court is satisfied that it was the intention of the People and the complainant to include the children in the permanent order as well. The People's application is granted accordingly, and an amended order of protection is being issued herewith.

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Plaintiff Brings Lawsuit over Eight Years of Attorneys Fees

November 19, 2015,

A New York Family Lawyer said that, this Civil Court action involves a dispute over legal fees that span a period of nearly eight (8) years. The deterioration of the attorney-client relationship and the legal action that ensue, often reveal acts and omissions by both parties that requires judicial intervention and scrutiny.

A New York Divorce Lawyer said that the particulars of this dispute unfolded in this sequence of events. The Plaintiff is the senior attorney in a law office and is admitted to practice law in the State of New York. The Defendant, is a resident of the State of New Jersey. Based on the record the fiancé of the Defendant referred her to the law office for legal representation based on the fact that the aforementioned law office had successfully defended him in his divorce action. According to the parties, the parties participated in a meeting at the law office where the parties discussed the legal action proposed by plaintiff to remove tenants from a residential apartment in Brooklyn.

A Manhattan Family Lawyer said it this stage, it is appropriate to divulge the factual history of a divorce action between defendant and her former spouse in the State of New Jersey. The factual history as presented by plaintiff in documentary evidence admitted as Court Exhibit "1" disclose these facts. In or about August 7, 2002, defendant filed for a divorce against her husband in the Superior Court of New Jersey in the Chancery Division of the Family Part in Bergen County, New Jersey. Issue was joined by the service and filing of the Defendant's answer in or about November 3, 2002.

A New York City Family Lawyer said on October 17, 2003, the presiding judge over the above action, dismissed the Defendant's answer and his supporting defenses, and granted defendant a Final Judgment of Divorce. The Final Judgment of Divorce, subsequently subsumed by an Amended Final Judgment of Divorce, in addition to the resolution of issues of equitable distribution, child support, and visitation, provides, in relevant part, as follows: "Plaintiff shall receive all title and interest in the condominium located at 4050 Nostrand Avenue, Apartment PH-C, Brooklyn, New York and Judgment is (sic) hereby entered in her favor. The Superior Court appointed attorney-in-fact, to execute and file the New York State Deed and the other recording documents mandated by NY law to complete the transfer of the property to defendant. It is irrefutable and undeniable that the deficiency in the aforementioned legal description of the property in the decree is the catalyst for the controversy in this case.

A Nassau Order of Protection Lawyer said that, on April 23, 2004, the Plaintiff Law Office and the Defendant executed a General Retainer which provided, in relevant part, as follows: The Defendant hereby retains the Plaintiff Law Firm "for the eviction of tenants located at 4050 Nostrand Avenue, Apartment PH-C, Brooklyn, New York, for a flat fee of $3,000.00 payable as follows: $1,500.00 down and the balance of $1,500.00 due in 30 days on May 23, 2004". A copy of the General Retainer is admitted into evidence as Plaintiff's Exhibit "1."

The Retainer Agreement, as is customary and standard in the legal industry, "makes no representation, express or implied, concerning the outcome of the litigation". Likewise, the agreement describes the mandatory provisions regarding fee disputes between the parties and the client's rights to fee dispute arbitration. The document itself and the testimony of plaintiff contends that defendant acknowledged that all the terms and conditions had been reviewed, understood and approved by her. Since Russian, and not English, is the primary language of the Defendant, it is questionable whether the Defendant understood all of the terms of the agreement. After the Defendant was inept in her response to her own attorney's questions on direct examination in her case-in-chief, this court insisted that the Defendant use an official Court ordered Russian interpreter. The Retainer did not contain an affidavit from an official Russian interpreter that the terms and conditions were explained to the Defendant.

After a five-day non-jury trial, the court had ample opportunity to observe the demeanor and credibility of the witnesses. After carefully reviewing and assessing all of the evidence in this case and after the reading of the trial transcript, obtained with the consent of the attorneys for the respective parties, the court makes the following findings of fact and conclusions of law.
Although a determination as to the proper amount of an award for legal fees lies largely within the discretion of the court, the discretion is not unlimited. There are many parameters that affect the value of legal services and must be considered by the court in evaluating this action. Those factors are the hours reasonably expended, a reasonable hourly rate, computation of the Lodestar fee and adjustments to the Lodestar fee.

In general, attorneys are free to select a number of reasonable courses of action in prosecuting a client's case without exposing themselves to liability for malpractice or negligence. In this case, the court does not find that the Plaintiff's law office selected a reasonable course of action in prosecuting the claim in this action. The first professional rule provides that a lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle without associating with a lawyer who is competent to handle it.

In this action, the first course of action for the Plaintiff law firm should have been to communicate with the attorney that handled the divorce action in New Jersey. Although Plaintiff did testify that he spoke to her and obtained her file, he never made any inquiry about the exclusion of the lease agreement or leasehold interest in the divorce decree. Any real estate attorney would have made a determination of any and all liens, tenancies, leases, encumbrances, claims, actions and exceptions to title that were subject to the transfer of the condominium to the Defendant. It is this court's opinion that the divorce attorney assumed responsibility for all rights, title and interest that the Defendant may have had in the subject property including any leases that may have been made subject of the transfer. But for the neglectful exclusion of such qualifying language in the transfer of this real estate located in Brooklyn, New York, the entire course of litigation undertaken by the Plaintiff's attorney would have been different or even non-existent.

The proper course of action would have been to commence a summary proceeding to recover possession of the subject apartment. The Housing Part of the Civil Court of the City of New York has been clearly granted statutory authority pursuant to RPAPL §235-c to declare the alleged twelve (12) year lease agreement at a monthly rent of $590.00 for the duplex Penthouse in Brooklyn unconscionable. RPAPL §235-c provides, in relevant part, as follows: "If the court, as a matter of law, finds a lease or any clause of the lease to have been unconscionable at the time it was made, the court may refuse to enforce the lease, or it may enforce the remainder of the lease without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result". As compelling, Section 2 of the statute provides that when it is claimed or appears to the court that the lease or any clause thereof may be unconscionable, the parties shall be afforded a reasonable opportunity to present evidence as to its setting, purpose and effect to aid the court in making the determination. This is not a new statute. It is well known to those attorneys that practice Landlord and Tenant law. The statute was enacted in 1976, effective July 26, 1976, and is applicable to all leases regardless of when executed in this state. No evidence, testimonial or otherwise, was introduced to show that plaintiff retained or consulted a Landlord and Tenant attorney notwithstanding the fact that he stated he was a veteran in the Landlord and Tenant Court. Even those that are experts consult with others in decision-making particularly in the legal profession.

This court is in accord with the Defendant's claims that the proper venue to remove the tenants from possession was the Brooklyn Housing Part of the Civil Court of the City of New York and not the Superior Court in New Jersey. The Judge correctly instructed the Plaintiff law firm that the appropriate venue was New York based upon the fact that the property was located in New York, the occupants were residents of New York and were not parties to the divorce action. The judge was explicit that the tenants, in light of the evidence presented by both parties, may have some rights to occupancy.

Under New York law, both parties would have been given an opportunity to participate in an evidentiary hearing to determine the validity of the lease. Defendant could have presented expert testimony of a real estate broker and/or real estate appraiser to substantiate that the rental amount was a "sweetheart deal" and well below the fair market value for a comparable apartment of that size, condition and location. Of equal importance, defendant would have been offered the opportunity to present evidence to prove that the sum of $590.00 did not reflect the fair market rent for the subject premises and that such a low rental was due to the prior ownership of the subject premises by the Defendant's former spouse. Evidence should have also been adduced to substantiate, as alleged by the Plaintiff law firm in the New Jersey Order to Show Cause, that the lease was intended to defeat her rights of possession contrary to the divorce decree. On the other side, the occupants would have been granted the statutory right to defend the lease, including but not limited to, the memorandum of lease dated March 25, 2003 that was sent to the title company for recordation, the lease itself and any other admissible evidence, testimonial or documentary, to substantiate its authenticity and its enforceability.
In regard to the initial fee customarily charged in the locality for similar legal services, this court finds that the fee initially charged at $3,000.00 for a simple holdover proceeding commonly referred to as a "no defense" holdover proceeding was escalated; $3,000.00 is not customarily charged in Kings County for a holdover proceeding for the recovery of possession from occupants presumably with no lease. A $3,000.00 or above retainer fee would be appropriate for a holdover proceeding to recover possession of a rent regulated tenancy such a Rent Control, Rent Stabilized or even Federal Section 8 tenant(s), in part, due to the complexity of those laws and regulations. However, the initial retainer amount was not totally unreasonable under the facts. Since the services in this case were clearly fixed and not contingency, those factors are not relevant here.

In addition to all of the above, this court finds it a deviation from traditional and customary legal practices for plaintiff to have his junior associate act as trial counsel in this case. As the presiding judge in many legal fee cases and trial counsel in many more cases of like substance, it is customary in the legal community for the Plaintiff to retain outside counsel in cases such as this one. In many instances, those outside counselors have an ongoing relationship with the law firm; many act, of counsel, on behalf of the firm as trial counsel or specialize in areas unfamiliar to the law firm. The trial transcript in this case speaks volumes of imprudence, inexperience and developing trial skills. It is apparent that no one, not even the managing partner, consulted with outside counsel to discern the requisite elements to prove a legal fee dispute case. Had such action been taken, maybe this action would have been avoided altogether. This court was remorseful that a young associate was obligated to act as trial counsel for his employer in this legal fee case. This court would discourage such uncustomary and irresponsible practice.

Based on all of the above facts and evidence, this court finds that the Plaintiff law firm has failed to prove that the legal fees rendered herein were reasonable and therefore, the complaint is dismissed with prejudice.

The Defendant is entitled to a refund in the sum of $1,918.50 and the Plaintiff is directed to refund this sum within 30 days from the date of this order. Upon the failure of the Plaintiff to comply with this order, the Defendant may enter judgment for $1,918.50 with interest from May 10, 2004, together with costs and disbursements.

The Defendant shall serve a copy of this Order with notice of entry on the Plaintiff within 30 days of the date of entry of this order by the Clerk of the court, and shall file proof of service thereof with the Clerk of this Court.

In order to retrieve any and all of the exhibits that were admitted into evidence in the above captioned case, the attorneys for the respective parties must appear at the 7th floor security desk and after the proper notice to the Chambers of the undersigned, all evidence on the execution of the form provided for that purpose acknowledging receipt thereof.
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Court Rules on Petitioner's Request for Tax Exempt Status

November 18, 2015,

A New York Family Lawyer said the issue here is whether renewal applications for four properties located in the Village of Freeport, Nassau County, are entitled to tax exemption pursuant to Real Property Tax Law § 462. We affirm the order of the Appellate Division holding that the properties are tax exempt.

A New York Divorce Lawyer said that, on September 24, 1999, respondent, Word of Life Ministries, submitted to Nassau County renewal applications for tax exempt status for four properties on the ground that they were used as residences by "officiating clergymen." The applications mistakenly answered "yes" in response to the question whether the properties were used for purposes other than as residences of "the officiating clergy" stating that they were used as the residences of assistant pastors. Before the tax authorities made a decision, respondent corrected the applications before the County to state that the properties were used as residences for officiating clergymen. After reviewing the applications, Nassau County concluded that the properties were not tax exempt under RPTL 462. Respondent submitted similar applications to the Village of Freeport on July 25, 2000, but the Village rejected respondent's attempt to correct its mistake. These applications were denied on or about August 15, 2000.

A Westchester County Family Lawyer said the respondent filed a CPLR article 78 petition against the County on July 17, 2000, and against the Village of Freeport on December 6, 2000. On March 20, 2001, the proceedings were consolidated.

After examinations before trial and a review of documentary evidence, Supreme Court determined that the applications were improperly denied, annulled the county and village decisions and granted the applications. Only the Village appealed to the Appellate Division, which affirmed the determination .. This Court granted the Village leave to appeal.
RPTL 462 states that "property owned by a religious corporation while actually used by the officiating clergymen thereof for residential purposes shall be exempt from taxation." At issue here is whether the men living at the four residences in the Village of Freeport are "officiating clergymen."

A Suffok County Family Lawyer said the Village asks us to construe the term "officiating clergymen" undefined in the statute1 as limited to the "spiritual and settled leader" of a church. In effect, the Village argues that there will frequently be only one officiating clergy person per congregation the cleric who has ultimate supervisory authority over the other clergy. In the Village's view, an "assistant pastor," by virtue of title alone, can rarely constitute officiating clergy within the meaning of the statute.

We decline to read the statute so narrowly. True, "officiating clergymen" does not mean all clergymen. But neither does it mean only one clergy person who presides over subordinates. Rather, we construe "officiating" as looking outward to a cleric's relationship with his or her congregation, and not to the hierarchical structure of the various clergy persons. Thus, a full-time, ordained member of the clergy who presides over an established church's ecclesiastical services and ceremonies, conducts weddings and funerals, and administers the sacraments of the church in short, one who "officiates" is entitled to the statutory tax exemption.

In arguing for a more restrictive definition, the Village points to New Jersey case law, which the Village contends interprets a similar New Jersey statute to limit that state's parsonage exemption to the "settled leader" of a church. In truth, however, New Jersey's test imposes no such restriction and the Village's position is based on a misreading of that state's precedent.
The Village cites Trenton Church of Christ v City of Trenton for the proposition that a pastor seeking a parsonage exemption in New Jersey must be the "settled leader" of a church, which the Village takes to mean the supervising cleric. The Village cites several cases in which exemption was denied because the person was not the settled leader.

In St. Matthew's Lutheran Church for the Deaf v Division of Tax Appeals (18 NJ Super 552, 87 A2d 732 [1952]), the New Jersey Appellate Division granted tax exemption for a building occupied by a minister assigned to conduct worship services for the deaf. The court held that tax exemption could not be granted to the residence of an itinerant preacher but that an officiating clergy person "must be a settled or incumbent pastor . . . installed over a parish, church or congregation" and "must be serving the needs of a reasonably localized and established congregation" (18 NJ Super at 558, 87 A2d at 735). In Congregation Ahavath Torah v Englewood City (21 NJ Tax 318, 320 [2004]), the New Jersey Tax Court, in holding that the residences of a synagogue's rabbi and cantor both qualified for the parsonage exemption, explained that "it is not status or title, but the services performed that determine if the exemption will apply." Thus, New Jersey looks, as we do, to the character and "extent of the clergyman's activities" (Friends of Ahi Ezer Congregation, Inc. v Long Branch City, 16 NJ Tax at 595 [1997]; see also Shrine of Our Lady of Fatima v Mantua Twp., 12 NJ Tax 392, 397-398 [1992]). "If the duties sound like those performed by congregational leaders of all religious denominations, the clergyman is considered an officiating clergyman of the religious corporation" (Ahi Ezer, 16 NJ Tax at 595).

Those lower New York courts that have addressed the issue have uniformly applied the correct test. Thus, in Matter of Holy Trinity Orthodox Church of E. Meadow v O'Shea (186 Misc 2d 880 [Sup Ct, Nassau County 2001]), the court held that the church choir director was not an officiating clergyman because, although he was ordained as a subdeacon and cantor within the church, he could not officiate at weddings or funerals and his sole ecclesiastical responsibility was to provide liturgical music for these ceremonies. By contrast, in Temple Beth Sholom, Inc. of Roslyn, N.Y. v Nassau County Dept. of Assessment, Bur. of Exemptions (2001 NY Slip Op 50147[U] [Sup Ct, Nassau County]), an assistant rabbi was held to be officiating clergy where he was employed full time by the synagogue; conducted secondary services on Sabbath and all holidays; taught Sisterhood and Men's Club classes during the year; supervised youth groups; conducted weddings, funerals, and baby namings when the rabbi was not available; and visited members in hospitals and homes after the death of family members (see also Full Gospel Tabernacle of Long Is., N.Y., Inc. v Board of Assessor of Town of Brookhaven, NYLJ, Jan. 25, 1982, at 15, col 6 [Sup Ct, Suffolk County] [assistant pastor entitled to exemption as officiating clergy]; 5 Ops Counsel SBEA No. 54, at 105 [1976] [suggesting that an officiating clergy is someone ordained who "preach(es) on a regular basis"]).

We therefore conclude that respondent is entitled to a parsonage exemption for each of the challenged properties, declining to hold that the mere designation of one of the pastors here as the "Senior Pastor" means that as a matter of law he and he alone is the "officiating" clergy. All of the pastors, including those living at the residences in question, were ordained and held no outside employment. All took part in church services and shared in the preaching. All provided marital counseling, officiated at marriages and funerals, and administered the sacraments recognized by the church. They also ministered to the youth of the church and took part in outreach to the homeless. Indeed, the pastors ministered to at least 2,000 people weekly. Because the pastors' salaries are low, respondent provides them with housing, located near the church. We thus reject the Village's argument that the residents in question are not officiating clergy.

Accordingly, the order of the Appellate Division should be affirmed, with costs.
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Plaintiff Brings Case Regarding Collateral Estoppel

November 17, 2015,

A New York Family Lawyer said that, the defendants contend the doctrine of collateral estoppel is applicable and would warrant a dismissal of these proceedings. On or about June 22, 1969, five youths were arraigned upon a complaint in the First District Court, Nassau County, New York, charged with violation of New York State Penal Law § 105.10 in that on June 21, 1969 at about 3:45 P.M. near the Southern State Parkway and Corona Avenue in North Valley Stream, Nassau County, New York, 'the said defendants and each of them and each acting in concert with and aided and abetted by each other, with intent that conduct constituting a felony be performed did each agree with the other to engage in or cause performance of such conduct, to wit: the said defendants with the intent to violate § 130.35 of the Penal Law of the State of New York when by forcible compulsion they engaged in sexual intercourse with the complainant.'
Four of the youths were subsequently indicted by the Nassau County Grand Jury on July 16, 1969 for the crimes of Rape in the First Degree (P.L. § 130.35) and Sexual Abuse in the First Degree (P.L. § 130.65) and arraigned in the Nassau County Court under indictment number 27613. The fifth boy was less than 16 years of age at the time of the alleged criminal acts and was charged with being a juvenile delinquent in the Family Court of Nassau County under Article 7 of the New York State Family Court Act.

The Family Court proceeding came before a Judge. In a lengthy opinion dated December 23, 1969, the Court found 'that the petitioner' (the complainant herein) 'has failed to prove by a fair preponderance of the evidence the allegations of the petition as to rape in the first degree in violation of Section 130.35 of the Penal Law'. The Court then dismissed the petition. The petitioner asserts that there exists an 'identity of issue' which would result in the binding of this Court to certain determinations made by Judge Golding which would require a dismissal of the indictment.

A New York Divorce Lawyer said the present circumstances differ from previous factual situations where collateral estoppel has been applied in the criminal courts. The defendants here were not party to the earlier Family Court proceedings and could in no manner be adversely affected by rulings in that proceeding. Although the requirement for mutuality of estoppel has been referred to in many criminal cases, no case cited or brought to this Court's attention has held that it is not a requirement for the exercise of the doctrine of collateral estoppel in criminal law.

A Nassau County Family Lawyer said the Court is cognizant of the recent decision by the New York Court of Appeals where the traditional concept of collateral estoppel was replaced by the full and fair opportunity test in applying the doctrine. Similarly, in our most recent decision in DeWitt we stated that the doctrine of mutuality 'is a dead letter' and we removed the limitation that a prior judgment may only be used defensively. New York Law has now reached the point where there are but two necessary requirements for the invocation of the doctrine of collateral estoppel. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling.'

Undeniably the language cited above establishes court made rules for the application of collateral estoppel in a civil case. The inherent differences in civil and criminal law would require a similar directive from an appellate court before the traditional concept of collateral estoppel and the requirement for 'mutuality of estoppel' is replaced by this new concept of 'full and fair opportunity' in the criminal arena. Lacking such direction, the absence of mutuality requires a denial of this application.

Even if Schwartz was held applicable to a criminal case, the result would not necessarily be different on this motion. 'A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation.' The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.'

A Staten Island Family Lawyer said it is fair to say that there is one witness who may now be available to testify in this proceeding whose testimony was clearly absent from the Family Court matter--the respondent there. That juvenile no longer has the protection of Code of Criminal Procedure § 10 and CPLR § 4501, having had a determination as to his activity on the date in question, and is no longer subject to prosecution. Judge placed considerable emphasis on the absence of corroboration of the sexual acts and it is this lack of corroboration which defense counsel urges is decisive here. This witness may provide facts which would satisfy the needed corroboration. To foreclose the People from the use of this new evidence is contrary to the intent and purpose of Schwartz in establishing the new guidelines for the doctrine of collateral estoppel.

Based on all the foregoing, it is ordered that the instant application is in all respects denied.
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Court Listens to Case to Terminate Parental Rights

November 16, 2015,

A New York Family Lawyer said that, in a child neglect proceeding pursuant to Family Court Act article 10, and a related proceeding pursuant to Social Services Law § 384–b to terminate parental rights, the mother appeals from (1) an order of the Family Court, Nassau County, dated December 18, 2009, and (2) an order of fact-finding and disposition of the same court dated May 11, 2010, which, after fact-finding and dispositional hearings, found that she had permanently neglected the subject child, terminated her parental rights as to the subject child, and placed the child in the guardianship and custody of the Nassau County Department of Social Services for the purpose of adoption.

A New York Divorce Lawyer said “In proceedings to terminate parental rights based on permanent neglect, the agency must establish as a threshold matter that it made diligent efforts to encourage and strengthen the parental relationship”. However, evidence of diligent efforts on the part of the agency are not required when “the parent has failed for a period of six months to keep the agency apprised of his or her location, provided that the court may consider the particular delays or barriers an incarcerated parent may experience in keeping the agency apprised of his or her location”.

Here, a Queens Family Lawyer said the mother admitted that she had no contact with the Nassau County Department of Social Services (hereinafter the DSS) from sometime in September 2006, until April 2007. Accordingly, the Family Court properly found that, notwithstanding the mother's incarceration during a portion of this period of time, the DSS's obligation to demonstrate diligent efforts was excused, since the whereabouts of the mother were unknown for six months or more, and the mother failed to keep the DSS apprised of her whereabouts.

A Long Island Family Lawyer said as to the finding of permanent neglect at a minimum, a parent's duty to plan for the future of his or her child requires the parent to correct the problems that led to the child being removed from the parent's care”.

Here, the child was removed from the mother's care in June 2006 because of the mother's history of drug use. It is undisputed that in September 2006, the mother left, without having completed drug rehabilitation programs at the Family Treatment Court and the Family and Children's Association that she had been attending, and she relapsed into drug use. Ultimately, she was arrested for selling drugs. By failing to complete the rehabilitative services to which she had been referred by the DSS, the mother failed to plan for the child during the period from September 2006 to February 2007.

The evidence supported the Family Court's finding that the mother's plan of obtaining an apartment and finding a job as a chef was, at the time of the finding of neglect, made on May 8, 2009, not “realistic and viable.” Based on that finding, and the mother's failure, while incarcerated, to “provide any realistic and feasible alternative to having the child remain in foster care until her earliest release from prison”, clear and convincing evidence supported the Family Court's determination that the mother permanently neglected the child by failing to adequately plan for his future.

The Family Court's determination that it was in the child's best interests to be adopted by the foster mother “is supported by the requisite preponderance of the evidence”. The mother's recent achievements, while laudable, “were insufficient to warrant a suspended judgment, given the absence of any real relationship between [her and the child] and the bond that the child had developed with the competent foster mother,” who had been caring for him virtually his entire life. Under these circumstances, it would not have served the child's best interest to prolong foster care unnecessarily.

Accordingly, the court held that the appeal from the order dated December 18, 2009, is dismissed as abandoned, without costs or disbursements; and it is further, ordered that the order of fact-finding and disposition dated May 11, 2010, is affirmed, without costs or disbursements.

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Plaintiff Brings Case Regarding Freedom of Information Act

November 16, 2015,

A New York Family Lawyer said this is a hybrid proceeding for relief under the Freedom of Information Law ("FOIL"), set forth in Article 6 of the Public Officers Law,§§ 84-90, and for related declaratory and mandamus relief. Petitioner/plaintiff asserts that the respondent/defendant Nassau County Police Department ("NCPD" or "respondent") has violated FOIL by consistently failing to respond properly to legitimate requests for information and documents.

A New York Divorce Lawyer said that it seeks not only a vacatur of denials for certain information, but also a declaration by the Court that NCPD has engaged in a pattern and practice of refusing to obey the law, and a judgment in mandamus directing the NCPD to do what it is bound to do under FOIL. It also seeks a related direction ordering respondent, in effect, to certify to the Court annually that it is in compliance with the statute. Finally, petitioner seeks to recoup its costs, including legal fees, expended in its efforts to obtain the information sought.

The first, dated October 4, 2012, was a request for each "Field name" for each data field within an "incident tracking" system maintained by respondent. The request defined "Field name" as the label or identification of an element of a computer database, and would include a subject heading such as a column header, data dictionary, or record layout.

A Brooklyn Family Lawyer said the petitioner took an administrative appeal from this "Field name" denial on February 13, 2013. The Commissioner of Police, upheld the denial by letter dated March 7, 2013, stating that "Information gathering and the means by which the NCPD classifies that information is an integral part of investigations your request is again denied."

A Bronx Family Lawyer the second Newsday request is dated January 15, 2013. That request was for "arrest reports, police reports, case reports and any other publically releasable documents" involving four criminal cases, identified by the name of the person charged. This "four criminal cases" request was denied by letter dated February 21, 2013, the NCPD officer issuing the denial stating that it was based on Public Officers Law § 87(2)(b), "which exempts from disclosure records, which constitute an unwarranted invasion of personal privacy".

The third Newsday request is dated February 15, 2013, and requested records indicating all monetary payments to confidential informants/cooperating witnesses from 2008 to 2012, including, if possible, date and method of payment, rather than an annual total, including ancillary paid expenses such as meals, housing and transportation. The request specifically noted that "we are clearly not seeking information that identifies individuals, simply the amount of public money that's gone to informants and cooperating witnesses."

By letter dated February 26, 2013 NCPD denied access to records regarding these confidential informant payments ("CI payments"), stating that it was doing so pursuant to Public Officers Law § 87 (2)(e)(iii) and (iv) and § 87(2)(f), because "the release of this information would endanger the safety of certain individuals and would reveal confidential information relating to criminal investigations and disclose investigative techniques and procedures."

The request for the records was denied by way of a form dated May 1, 2012, which had checked as the reasons for denial under the Public Officers Law 1) the need for authorizations from persons involved in the incident, 2) exposure of criminal investigative technique or procedure, and, regarding E911 records, County Law § 308(4). Upon Newsday's administrative appeal of May 22, 2012, Deputy County Attorney serving as the FOIL appeals officer for this appeal, remanded the request to NCPD "so that it may specifically identify and enumerate documents in its possession and articulate any exemption it may have as to a particular record." Letter dated June 22, 2012.

Upon administrative appeal after remand, by letter dated September 20, 2012, NCPD notified Newsday that the County Attorney had requested that NCPD reconsider its second denial and, as a result, NCPD was producing documents, but redacted "in order to prevent an unwarranted invasion of personal privacy of certain individuals."

Plaintiff challenged the redactions in an administrative appeal by letter dated January 29, 2013. It asked for unredacted pages so it might know the scene of an incident, defendant's address and occupation, witnesses, arrestees or suspects regarding criminal incidents, persons against whom defendant had an order of protection, and the name of a DSS/CPS employee assigned to look into a matter. Plaintiff also challenged whether all documents concerning Defendant were produced, whether or not redacted.

The fifth and final request addressed in this proceeding was dated August 21, 2012 and sought the names of all sworn officers in the police department. The parties have resolved this request, albeit not without complaint from petitioner that it took more than a year to do so. Accordingly, the Court will not address it, except as it concerns the fee request.

As is made clear in the legislative declaration, the Freedom of Information Law is intended to open the workings of government to the public, including through a free press, which is cast as the public's representative for that purpose. Public Officers Law § 84. To effect this purpose, the statutory scheme is comprehensive and at its core presumes that governmental records are available for review.

Further, given the arguments made on this proceeding, it is worth noting that, as a general matter in Article 78 review, a court should not evaluate arguments and proof that were not raised or presented at the administrative level. Nevertheless, the Court will address such arguments here, both because of the alleged potential effect of release on the confidentiality rights of third parties, and because petitioner has commenced a hybrid proceeding that blurs the line between Article 78 and a declaratory judgment action. In any event, these arguments do not change the result.

In view of the foregoing well-established law, it is apparent to this Court that the denial of access to the records requested was not adequately supported by the respondent, and that the petition should be granted for that reason, to the extent indicated.

In denying the "field names" records NCPD provided no explanation or proof that disclosure of this information would have the consequences that would fall within the stated statutory exemptions. Rather, it did no more than restate the statutory language.

However, while these statements are made upon the affiant's "training and experience as First Deputy Commissioner", he does not claim to be an information technology expert, and the obviously hearsay statements attributed to ITU personnel are inadmissible. Before a court could accept them, these contentions clearly require expert proof of how a security breach could occur if the requested data were released, and none is offered. The absence of such proof is particularly conspicuous here since ITU personnel are employees of NCPD. Under these circumstances, this Court cannot find that the respondent has shown that the "field names" information in the incident tracking system as sought by petitioner falls within Public Officers Law § 87(2)(e)(iv), as claimed. Thus, resort to this exemption is inadequate.

Agencies of government may be required to produce records that contain both information that may be withheld under a statutory exemption and other information that is not so protected, with redaction of the former. A blanket refusal based on the "mixed" nature of requested documents cannot be countenanced. Id. Accordingly, respondent is directed to produce the requested documents, redacted to protect the names of undercover officers.

Importantly, respondent does not provide any reason as to why a careful redaction of details regarding such payments, revealing only the payment information requested, still would fail to protect the individuals involved and would lead to a disclosure of identities. Although respondent correctly cites authority to the effect that even the possibility that safety could be compromised can be a sufficient grounds for withholding records, there still must be a showing of such possibility, and here there is nothing but conclusory statements.

Initially, the Court rejects respondent's resort to County Law § 308(4). That section shields only those records of calls made to an emergency 911 system, not all 911 records generally. As exemptions are to be narrowly construed, NCPD was not entitled to redact or withhold records except those which were of the calls themselves.

Further, given the undisputed notoriety and public interest in the Brewer case, respondent's reliance on a line of cases denying on privacy grounds inmates' access to witness information that concerned only their own matters is misplaced.

As there is no showing of safety concerns in the Brewer matter and, with regard to privacy, no demonstration that revealing the names would fall within one of the examples of "unwarranted invasion of personal privacy" set forth in Public Officers Law § 89(2)(b), the Court must balance public interest against more generalized privacy concerns.

The Court also notes that in its opposing memorandum respondent presents supporting arguments only with regard to third parties, addressed in the preceding paragraph, and the identification of a CPS/DSS worker involved in a matter affecting the family. As to the latter, this must be disclosed as it concerns the performance of a public employee in his or her job, which is of legitimate public interest generally, as well as in this particular case.

To the extent respondent relied on those sections of FOIL that refer to interference with pending or future investigations, revealing investigative techniques, or compromising officer safety, there has been no showing as to how production of the records sought would cause the negative effect cited. The Court therefore cannot find that an exemption under the statute has been satisfied.

In this case the petitioner has substantially prevailed, as this Court has not upheld any of the denials of access issued by the respondent and has directed remedial action. Further, in almost all cases there was no reasonable basis for the denials, and in several instances respondent did not articulate any reason, let alone a reasonable one, in support of its stated position.
As no affirmation of services or other proof is offered by petitioner or its counsel regarding the proper amount of fees, a hearing is required.

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Plaintiff Brings Motion to Renew Prior Motion to Dismiss

November 16, 2015,

A New York Family Lawyer said in this family case, the Defendants bring this motion seeking to reargue and renew their prior motion to dismiss, pursuant to CPLR §§ 3211 and 327, which resulted in an order of this court denying the motion. The Plaintiff opposes the present motion. Before addressing the substance of the Defendants' present motion it is worthwhile to review the nature of the underlying action, the Defendants' prior motion and the claims made therein.
A Nassau County family lawyer said that this is an action to recover monies allegedly due and owing pursuant to an equipment rental agreement (the "Agreement") entered into by the defendant corporation and the Plaintiff's assignor, guaranteed by the Defendant, the President of the corporation for the lease of telecommunication equipment and services.

The Plaintiff opposed that motion arguing that jurisdiction was properly acquired over the Defendants in New York by virtue of the forum selection clause contained in the Agreement. In denying the Defendants' motion, the court began with a recognition of the well accepted policy that forum selection clauses are prima facie valid and enforceable unless shown to be unreasonable.

A New York Divorce Lawyer said the court took into consideration the Defendants' argument that because the forum selection clause herein allows for claims to be brought in the State where the "Rentor" [NorVergence] maintains its principal place of business or in the State where any assignee of the Agreement maintains its principal place of business, at the time of its execution, the Agreement would allow for jurisdiction to potentially lie in any one (1) of the fifty (50) states or in a foreign country.

A Queens Family Lawyer said after distinguishing a number of those cases from the one sub judice, the court also took note of a number of related actions in New York and around the country, cited by the Plaintiff, which have found this same forum selection clause valid and enforceable.
The court's review of all of these cases, and other cases addressing the forum selection clause herein, revealed that the majority of nisi prius decisions rendered on the issue invalidated the clause, while the appellate decisions around the country, both state and federal, by and large favor the clause's validity.

A Long Island Family Lawyer said based thereon, the court found the forum selection clause herein to be clear and specific enough to be enforceable, "absent Defendants demonstration that the forum selection clause was obtained because of fraud or overreaching, or is so manifestly unfair as to effective deprive the Defendants of their day in court." As to these latter issues, the court took note of the Defendants' extensive argument that the Agreement, including the forum selection clause, was procured by fraud, allegedly rendering the entire Agreement void ab initio, found that the Defendants' allegations "make a compelling argument against the validity of the contracts in general, and even raise some question as to whether or not the Plaintiff herein is a good faith purchaser for value of the Equipment Rental Agreement"
Indeed, defendant corporation, a sophisticated business entity, agreed when it originally entered into the lease agreement that venue would be placed in New Jersey and, in our view, cannot now be heard to argue that the change in venue from New Jersey to New York, as the result of the subsequent assignment, is so oppressive as to warrant rendering the provision void.
“A motion for leave to renew must (1) be based upon new facts not offered on the prior motion that would change the prior determination and (2) set forth a reasonable justification for the failure to present such facts on the prior motion."

The "new facts" upon which the Defendants rely are purportedly contained in the affidavits of former NorVergence employees, which the Defendants submit as their Exhibits 5 through 8, inclusive. The Defendants allege that these affidavits are "newly obtained" from a network of attorneys around the country who are handling cases involving other lessees of equipment from NorVergence, via a password protected website and an email list-serve created for the sharing of evidence and information. The Defendants summarily aver that "it is reasonable to conclude that this evidence was not available a year or so ago."

As serious as these allegations concerning fraud committed in procuring these lease agreements with customers appear, they were all raised in the Defendants' previous motion to dismiss.

A comparison of all of the papers previously submitted on the Defendants' prior motion to dismiss with the "new evidence" now proffered by the Defendants leads to the inescapable conclusion that these factual allegations are not new, but are "merely cumulative with respect to the factual material submitted in connection with the original motion."

Accordingly, that branch of the Defendants' motion which seeks to renew their prior motion to dismiss is denied.

A motion to reargue is addressed to the discretion of the Court and may be granted upon a showing that the Court overlooked or misapprehended the facts or misapplied the law or for some other reason improperly decided the prior motion.

The Defendants originally argued that consumer contracts entered into in the State of New York must be in 10-point type to be enforceable, unless the transaction is governed by maritime law, which permits 4-point type; and, that the forum selection clause herein is unenforceable, inter alia, because it is in 6-point type. This court did not find the Agreement to be a consumer contract, but an arms length transaction between two commercial enterprises.

The problems with the Defendants' arguments are three-fold. In the first instance, this court is not bound by the opinions of legal scholars and Attorneys General. The Defendants do not offer one case which supports their tendered definition of a consumer lease. The second problem with the Defendants' argument is that this is not "most states," it is New York State; and, the definitions of "consumer" and "consumer lease" utilized in "most states" are not controlling in this State. The third problem faced by the Defendants is that their suggested definition of "consumer" and "consumer lease" is not supported by U.C.C. § 2-A-103, upon which they rely.

U.C.C. § 2-A-103, upon which the Defendants rely, does not provide a definition for "consumer." Subparagraph (1)(e) thereof, defines "consumer lease" as "a lease that the lessor regularly engaged in the business of leasing or selling makes to a lessee who is an individual and who takes under the lease primarily for personal, family or household purposes."

This controlling statutory definition of "consumer lease" is significantly different from the one proffered by the Defendants. Conspicuously absent from the Defendants' proposed definition is the phrase, "a lessee who is an individual." There is no question, however, that the lessee herein, the Defendant, New Concepts Realty, Inc., is not an individual who entered into this Agreement primarily for personal, family or household purposes," but is a corporate entity who entered into this Agreement for commercial business purposes. It therefore remains the opinion of this court that this was not a consumer lease and was, in fact, a commercial transaction between two commercial entities.

There is nothing in the language of the Sterling National Bank v. Eastern Shipping Worldwide, Inc., supra. decision which can reasonably be interpreted as either explicitly or implicitly limiting its holdings to the peculiar facts of that case. To the contrary, the First Department's analysis of the validity of forum selection clauses in general, as well as the absence of fraud or overreaching with respect to this specific forum selection clause, is amenable to universal application. Moreover, contrary to the Defendants' suggestion, the facts of that case, involving a commercial transaction between two commercial entities, involving the very same agreement and the same forum selection clause as the matter before this court, are virtually the same.
The Defendants simply do not present any evidence that the forum selection clause herein itself was obtained by fraud. While they raise serious questions about the manner in which this Agreement was obtained and present significant evidence, both old and "new," demonstrating that fraud, either in the inducement and/or in factum, played a significant role in obtaining the execution of the Agreement, including the "Terms and Conditions" page, the Defendants present no evidence addressed specifically to the forum selection clause.

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Plaintiff Alleges Negligent Care of Individual Who was in Care of the Defendant

November 15, 2015,

A New York Family Lawyer said that, this action arises from the defendant's treatment in 1982 of plaintiff a 36-year-old individual who was born severely mentally retarded and blind. While he was treated by defendant, plaintiff was a resident of an intermediate care facility of the United Cerebral Palsy Association of Nassau, Inc. (hereinafter UCPA).

Plaintiff had been institutionalized his whole life and, from 1972 until 1981, resided at the Suffolk Developmental Center. In an effort to control his increasingly severe episodes of self-abusive behavior, in 1978 his primary physician at the facility, the doctor began administering Haldol to him. The doctor viewed Haldol as the "drug of choice" in eliminating such behavior. The drug was initially administered in low dosages, which were gradually increased in small increments, during which time plaintiff was carefully monitored for any signs of Haldol-related side effects. Over the course of the following 13 months, the dosage was gradually reduced again to that of four milligrams per day, considered optimal by the doctor inasmuch as the likelihood of side effects was low and his severe self-injurious behavior was contained.
Plaintiff was maintained on this dosage of Haldol for the next two years under the doctor’s care, during which time his behavior improved dramatically: he participated in various recreational group activities, was independent in many aspects of daily living, and was fully ambulatory. Plaintiff’s impressive improvement did not go unnoticed by those in the mental health community close to him. He was selected to participate in a new home environment instituted by UCPA known as an intermediate care facility, the purpose of which is to establish a family-like setting where residents can enjoy community resources in an effort to allow them to maximize their potential.

A New YorkDivorce Lawyer said the transfer was effected in March 1981 at which time plaintiff came under the care of the defendant, the attending physician at the UCPA facility. Defendant continued plaintiff’s medication of four milligrams of Haldol daily for the next 16 months. Plaintiff adjusted well to his new environment and he steadily improved in his personal and social development, gaining independence in many activities as a result of a behavior modification program instituted by UCPA. He was able to dress, eat and tend to personal hygiene on his own. He was able to converse intelligently in English and Spanish, and he enjoyed many of the recreational activities, including dancing, baseball, kickball and swimming. Moreover, he attained a level of independence in ambulation as a result of having been taught to walk with a blind man's cane as his guide.

A Queens Family Lawyer said that in July 1982 defendant ordered a change in plaintiff’s medication. Instead of receiving four milligrams of Haldol daily at bedtime, he received two milligrams on an as needed basis. Thus, the medication would be administered only if plaintiff became hyperactive or self-abusive. The doctor explained that his decision was prompted by an impending State audit by the Office of Mental Retardation and Developmental Disabilities of all UCPA programs, which was to include a review of each resident's records. The audit would be focusing, in part, on whether those patients on psychotropic medication had been evaluated with a view toward reduction or elimination of medication, a goal expressly made part of UCPA's policy of encouraging freedom from chemical restraints which was consonant with both Federal and State regulations and stemmed from a concern for preventing the adverse effects of medication. Defendant reviewed the plaintiff's UCPA records and concluded that since Charles had been on Haldol for "quite some time" and was "certainly" at risk for tardive dyskinesia, "an irreversible neurological disorder characterized by involuntary, rhythmic and grotesque movements of the face, mouth, tongue, jaws and extremities", one of the most feared of the drug's side effects, of which Charles had as yet manifested no signs, "he certainly deserved a trial at removal".

A Long Island Family Lawyer said that within one month of defendant’s reduction and/or elimination of the medication, the plaintiff regressed to his former self-abusive behavior, which was so severe that it was uncontrollable and required hospitalization under his care. After an unsuccessful two-week trial of various drugs to control plaintiff’s severe self-abuse, defendant represcribed Haldol in dosages of up to 15 times what they had been during the maintenance period, causing Charles to experience several of the severe side effects of the drug, e.g., Parkinsonian-like stiffness and tremors, lethargy, drowsiness, and an inability to eat, swallow, talk or walk. Plaintiff was maintained on a high dose of Haldol during the next five weeks of his hospitalization, as well as throughout his 11-week post-hospitalization stay at the intermediate care facility. During that time, his condition deteriorated, and he was transferred back to the Suffolk Developmental Center.

Upon plaintiff’s return to the Suffolk Developmental Center, he was confined to a wheelchair, had developed stiffness, tremors and contractures (shortening of the tendons and ligaments) of all four extremities, was barely able to speak, unable to feed himself, and had lost 28 pounds. The immediate neurological and psychiatric evaluations performed confirmed Dr. Zurek's belief that plaintiff’s condition was the result of an "excessive use of Haldol". In a word, he was catatonic.

The doctor’s treatment plan was for a gradual reduction of the Haldol in an attempt to reverse some of the side effects. As the medication was being discontinued and then eliminated, plaintiff’s physical condition improved gradually, though the self-abusive behavior returned, requiring the use of physical restraints. Despite intensive and painful physical therapy, the condition of his legs did not improve. The flexion contractures remain, and are irreversible. Plaintiff is unable to walk and is confined to a wheelchair.

The plaintiff's theory at trial was that defendant, acting in the scope of his employment with UCPA, was negligent in reducing the Haldol medication, that both defendant and UCPA departed from accepted standards of medical practice in failing to obtain the informed consent of plaintiff’s mother and guardian, and that these acts proximately caused his injuries. The defendants asserted that defendant’s decision to reduce plaintiff’s medication was within the scope of professional judgment for which no liability can be imposed and that, even if departures from accepted medical practice were demonstrated, no causal connection between the alleged departures and plaintiff’s injuries existed. They asserted that the Haldol played no part in causing the injuries sustained, but that they were the natural sequelae of plaintiff’s abnormal neurological condition which existed from the time of birth and which "got worse for reasons which are not clear".

At the conclusion of the three-week trial, the court, pursuant to CPLR 4111(b), submitted various special interrogatories which it had formulated to the jury without objection by any party. The jury concluded that "defendant departed from accepted medical practices and standards in changing the administration of Haldol from 4 MG at bedtime to 2 MG as needed", and that this act was both a proximate cause of Charles's injuries and was performed within the scope of Dr. Simon's authority and in furtherance of UCPA's activities, rendering UCPA vicariously liable. The jury rejected the claim asserted against defendant predicated on lack of informed consent as well as that advanced against UCPA for its alleged failure to earlier observe and/or report to defendant changes in plaintiff’s condition after his July 1982 discontinuation of the Haldol. With respect to the remaining interrogatory concerning UCPA's "active" negligence, i.e., "Was defendant [UCPA] negligent in failing to provide Ixia Leal, the mother of plaintiff, with an opportunity to actively participate in the decision to change the medication he was receiving" in accordance with its self-imposed policies and procedures, the jury responded affirmatively. As to the second part of the question, i.e., whether this negligence was a proximate cause of any injury sustained by him, the jury marked the box labelled "No", inserted an asterisk, and qualified its response with the handwritten addendum: "The jury feels, however, that there were other acts of negligence on the part of [UCPA] which were proximate causes of injury sustained by plaintiff. In attributing fault to the defendants, the jury was instructed to do so only with respect to each defendant's affirmative negligence, i.e., not to consider UCPA's vicarious liability, and apportioned fault at 55% to defendant and 45% to UCPA. The jury awarded the plaintiff $2,000,000 for plaintiff’s pain and suffering and for the permanent effect of the injuries and $500,000 for care and maintenance services.

The inherent inconsistency of the verdict, as it stood, i.e., that, on the questions submitted to it, the jury did not find UCPA to have been independently negligent yet apportioned fault to UCPA for such negligence, was addressed by counsel for the defense, who sought a mistrial, and the plaintiff's attorney, who urged that judgment be entered in his client's favor on the verdict since defendant was found negligent and UCPA was vicariously liable for his acts. The court ultimately determined to resubmit the interrogatories to the jury for clarification. It instructed the jury to "indicate on paper what it had in mind" with respect to the "little asterisk and the fore noted comment", over the defendants' objection.

The expert testimony elicited established that defendant’s acts were a "substantial factor in producing the resultant injury". The physicians testified unequivocally that defendant’s "clear" deviation from accepted medical practice in reducing and eliminating plaintiff’s Haldol medication was a proximate cause of the injuries suffered by him inasmuch as the sudden reduction necessitated the subsequent administration of massive doses of Haldol which resulted in complications which in turn led to the development of irreversible leg contractures making it impossible for him to walk.

Further, the jury was warranted in rejecting the defense claim that plaintiff’s condition was in no way attributable to the Haldol elimination and re-administration but was attributable to the aggravation of a structural brain disturbance which had been with him since birth, for "a plaintiff need not eliminate entirely all possibility that defendant's conduct was not a cause, but only offer sufficient evidence from which reasonable persons may conclude that it is more probable than not that the injury was caused by the defendant", which the plaintiff did.

We turn now to the concededly unorthodox manner in which the verdict as to UCPA was rendered. Upon ascertaining that an internal inconsistency in a jury's verdict exists, a trial court is authorized to either declare a mistrial or "require the jury to further consider its answers and verdict". While the trial court in this case properly endeavored to have the jurors reconcile their initially irreconcilable factual findings inasmuch as it did not appear that they were hopelessly confused so as to warrant the declaration of a mistrial, it did not do so in a manner consistent with the law. Just as where a special finding issued by a jury which has been charged to deliver only a general verdict is regarded as "surplusage", "gratuitous" so, too, should a jury finding beyond the ambit of or deviating from the questions propounded to it be considered a legal nullity. It is clear that the charge of the trial court, insofar as it is not accepted to, becomes the "law of the case" and the jury is bound to render its verdict in the form prescribed by the court. It was, therefore, incumbent on the trial court to direct the jury to reconsider its findings and to return with a special verdict responsive to those interrogatories posed by the court. In the absence of such action, the verdict finding UCPA to have been actively negligent cannot be sustained, and the apportionment of fault between the two defendants must be set aside.
This determination is, however, "without practical significance to the plaintiff but may merely affect defendants' obligations as between each other" since UCPA is nevertheless vicariously liable for defendant’s affirmative acts of negligence and therefore UCPA and defendant are each jointly and severally liable for the full amount of the verdict, which the plaintiff may recover from either defendant. We note that inasmuch as no cross claims for indemnification or contribution have been asserted by the defendants as against one another, we do not remit the matter for a new apportionment of fault between them.

With regard to damages, the verdict was excessive to the extent indicated. We have examined the defendants' remaining contentions and find them to be without merit.

Accordingly, the judgment is reversed, on the law and the facts and as an exercise of discretion, so much of the verdict as apportioned 55% of the fault to defendant and 45% of the fault to the United Cerebral Palsy Association of Nassau County, Inc., is set aside, and a new trial is granted on the issue of damages only, unless within 20 days after service upon the plaintiff of copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Nassau County, a written stipulation consenting to reduce the verdict as to damages to the principal sum of $1,100,000 ($1,000,000 for pain and suffering and $100,000 for future care and maintenance services) and to the entry of an amended judgment accordingly. In the event the plaintiff so stipulates, then the judgment, as so reduced and amended, is modified, on the law, by setting aside so much of the verdict as apportioned 55% of the fault to defendant and 45% of the fault to the United Cerebral Palsy Association of Nassau County, Inc., and as so modified, the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

If you want to file a claim for damages, seek the legal assistance of a Nassau Order of Protection Attorney and Nassau Family Attorney at Stephen Bilkis and Associates.

Motion Brought By Social Services Request DNA Testing

November 15, 2015,

A New York Family Lawyer said this is a case where a motion was brought by the Deputy County Attorney's Office, on behalf of the Nassau County Department of Social Services, seeking to have the Court direct the respondent to submit to DNA testing for the purpose of establishing paternity of the subject child. Both the respondent and law guardian submitted opposition papers invoking the doctrine of equitable estoppel, arguing that the child has an intact father-child relationship with another individual.

A New York Divorce Lawyer said that this matter was initiated when the Department filed a petition for paternity and support against respondent. The Magistrate presided, and referred the matter to this Court once the issue of equitable estoppel was raised.

The doctrine of equitable estoppel may be used in a variety of family law matters including custody, visitation, support and, as here, paternity. Regardless of whether it is being used in an offensive posture to enforce rights or a defensive posture to prevent rights from being enforced, it is only to be used to protect the best interests of the child or children involved. Id. Herein, the respondent and law guardian seek to invoke the doctrine in an defensive posture, seeking to prevent respondent from having to take a DNA test.

A Manhattan Family Lawyer said that in this matter, the respondent and law guardian seek to invoke equitable estoppel, alleging that a different man, is the person whom the child believes to be his father. The father has not submitted an affidavit and in no way has attempted to confirm or refute this allegation to the Court. The law guardian asserts that the child calls him "Daddy", has lived with him for the last year, is cared for by him on a daily basis and that he and petitioner have another biological child in common.

The Court finds that the law guardian's assertions alone do not meet the burden required to establish that a parent-child relationship exists between the parties. A denial of DNA testing on equitable estoppel grounds requires a greater showing of proof.

A New City Family Lawyer it is well settled that the Court's overriding concern when determining whether to invoke equitable estoppel is the best interests of the child. Greg S. v. Keri C., 38 AD3d 905 (2d Dept. 2007). The factors to be considered when trying to make such a determination are: the child's interest in knowing the identity of the biological parent; whether the biological parent's identity is likely to be discovered; whether the DNA testing would have a traumatic affect upon the child; and whether uncertainty as to paternity would impact a parent-child relationship.

None of the moving or opposition papers provide this Court with sufficient information to address any of these factors. Further, this Court is concerned about the child's status should equitable estoppel be applied. The law guardian and respondent claim that the father has a parent-child relationship with the mother. Should this Court invoke equitable estoppel herein, a situation could arise where the father leaves the family, leaving the wife. with no source of support from a noncustodial parent. This certainly is not in the mother's best interest.

Finally, it is clear that respondent's concern in invoking equitable estoppel is to avoid the responsibilities associated with being declared the child's father. Equitable estoppel is not to be used for the purpose of avoiding child support. Accordingly, the Deputy County Attorney's motion is granted. The respondent, petitioner and child are directed to appear for DNA testing. The matter shall be referred back to Magistrate Miller for resolution of the paternity proceeding and, if appropriate, a child support determination. Therefore, it is ORDERED that the motion of Deputy County Attorney Bailey to direct that DNA testing occur is granted; and it is further ORDERED that the parties are to appear before the Magistrate on September 7, 2007.

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