Court Decides if Summary Judgment Should Be Granted

April 7, 2014,

A New York Family Lawyer said that, in May 2004, plaintiff's decedent was diagnosed with liver cancer, determined later to have originated in her colon. Approximately 14 months earlier, on March 18, 2003, medical records show she had complained of rectal bleeding to her primary doctor, defendant. The same records reflect she was given a referral to defendant a gastroenterologist, for a colonoscopy, but the colonoscopy did not take place. Plaintiff’s decedent met again with the doctor in July 2003, but the records do not reflect a discussion of rectal bleeding or the colonoscopy referral.

A New York Custody Lawyer said that, by September 20, 2003, plaintiff began to suffer an extended period of constipation and abdominal pain and went to the emergency room of defendant Medical Center. A CT scan was performed at that time, ultimately showing thickening of the wall of her sigmoid colon, an enlarged liver and suspicion of a mass in the liver. The CT report recommended an MRI and clinical correlation to further evaluate and exclude inflammatory versus malignant process. Plaintiff was referred again to the doctor for a colonoscopy, which took place a week later on September 26, 2003. The doctor however, was unable to complete the colonoscopy because of the presence of highly inflamed tissue and the possibility of a perforation in his colon. He sent plaintiff back to the emergency room at the said medical center immediately with two tissue samples, asking for an urgent surgical evaluation and monitoring to rule out perforation.

A Nassau County Family Lawyer said that, defendant the surgeon on call at the medical center, evaluated plaintiff and concluded she showed no signs of an immediate surgical emergency. Defendant, a pathologist, examined the tissue samples and found evidence of inflammation, but no malignant cells in the samples. Gastroenterologists at Montefiore also evaluated plaintiff. A small bowel series was done to rule out problems in that area of the abdomen.
A Bronx Order of Protection Lawyer said that, there was agreement among the physicians at the said medical center that plaintiff had, at the very least, some type of inflammatory bowel disease, which had to be treated and ameliorated before a repeat colonoscopy could be performed to confirm their impressions and narrow their differential diagnoses. They began treating plaintiff with medication for Crohn's disease and contemplated a follow-up plan with the gastroenterology department. According to defendant primary care doctor’s testimony, plaintiff was anxious to leave the hospital and argued that any testing done as an inpatient could also be done on an outpatient basis and the former agreed that was true. Plaintiff reportedly told him she preferred to continue with her own gastroenterologist, who had privileges at Bronx Lebanon Hospital, but not at Montefiore. Nevertheless, an appointment was made for her with the gastroenterologists at Montefiore, which she did not keep.

A Nassau County Custody Laywer said the plaintiff began to feel much better with the treatment for Crohn's disease and followed with the doctors. According to plaintiff’s testimony, she had two appointments for another colonoscopy in November or December 2003, but those appointments were canceled by the gastroenterologist's office. On December 1, 2003, plaintiff returned to the emergency department at Montefiore after a fainting spell. The hospital records reflect that she refused an inpatient colonoscopy at that time. By the time plaintiff met with the gastroenterologist in January 2004, she had confirmed she was now pregnant. The doctor explained the risks of colonoscopy with pregnancy and she opted not to have the colonoscopy at that time. Five months later, ultrasound studies showed metastasis of colon cancer to her liver. She began chemotherapy, delivered her child, and died three years later on June 15, 2007.

A Bronx Visitation Lawyer said that, plaintiff commenced this lawsuit in 2006 and was deposed. After plaintiff’s death, her mother was substituted for her as plaintiff in the action. The note of issue was filed in June 2009 and the doctors made the instant motions for summary judgment dismissing the plaintiff's action against them.

The issue in this case is whether the motion for summary judgment should be granted.
Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment. A party opposing a motion for summary judgment must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact. Bare conclusory assertions of an expert are insufficient to defeat summary judgment. While an expert may reach conclusions in his area of expertise, he may do so only on the basis of established facts.
To make a prima facie case of medical malpractice, a plaintiff must prove that the healthcare provider departed from accepted standards of practice, thereby breaching a duty owed to the patient, and must also prove that the departure alleged was a proximate cause of injury. Defendants are to be judged on the facts that existed at the relevant time and not in retrospect and in light of subsequent events. A physician generally does not have a duty to involve him or herself with aspects of the plaintiff's care unrelated to the physician's field of practice.
There was no need for a guaiac since plaintiff told her primary doctor she was bleeding rectally. A rectal exam was not indicated and would not have shown anything in any event since there is no evidence she had rectal cancer. A CT scan was performed in September 2003 and her primary doctor did communicate with the defendant gastroenterologist, after the incomplete colonoscopy. A repeat colonoscopy for a definitive diagnosis was contemplated by him as soon as plaintiff’s colon healed sufficiently to make that possible. The gastroenterologist was following the case and the primary doctor reasonably relied on the specialist's treatment of plaintiff’s gastrointestinal complaints.
It was plaintiff’s decision not to have an MRI at Montefiore in September 2003. Plaintiff's expert did not opine as to what could have been seen on an MRI at that point, even if she had agreed. As noted previously, either plaintiff’s liver was involved by then, or it was not. There were possible explanations for the findings on the CT scan that did not involve cancer. Plaintiff's experts did not take a position either way on that issue and the evidence of cancer least amenable to variable interpretation would have been the colonoscopy.
It was her decision not to have a colonoscopy in December 2003, the first time it could have been done after the September visit to the emergency room. Her testimony that it could not be performed at that time because of an unexplained fever is flatly contradicted by the hospital records and does not create an issue of fact for trial, especially since she testified both that a colonoscopy was recommended and that it was not recommended during that same visit. It was her decision not to have a colonoscopy in January 2004 because of her pregnancy. The record shows that Torres only underwent colonoscopy and radiological or ultrasound studies when she was experiencing pain, despite the number of times such studies were recommended to her. she testified that she never felt abdominal pain before September 2003 and that she had begun to feel much better by December and January since the bowel inflammation was improving with treatment.
Despite plaintiff's attempts to cast doubt on the primary doctor’s first referral to a gastroenterologist in March 2003, that referral was documented by him. Plaintiff testimony that "nothing" was done by any of the doctors to whom she complained of rectal bleeding does not create an issue of fact since any time her complaint of rectal bleeding was documented, there was also documented evidence that appropriate action was either taken or recommended, whether she followed the particular recommendations or not.
Plaintiff's experts have not raised issues of fact regarding departures from accepted medical practice as to any of the movants. The doctor’s affidavit is, as previously noted, entirely vague, conclusory and directed to all defendants regardless of their individual role or lack of role in plaintiff's treatment. Plaintiff's unidentified expert's opinion regarding departures is unsupported by the evidence or by any explanation for the conclusions offered. Furthermore, plaintiff's experts did not make any connection between the alleged departures and the cause of plaintiff's suffering and death, except to state that, if she had been diagnosed in 2003 or in January 2004, she would have had a statistical 60% to 40% chance of surviving for 5 years. Plaintiff's expert offered no factual or evidentiary support for the bare conclusion that her cancer was at the development stages cited in 2003 and in January 2004.
Movants are directed to serve a copy of this order on the Clerk of Court who shall amend the caption to delete the names of the doctors as party defendants. Accordingly, the court held that, these separate motions by defendants, for summary judgment dismissing the plaintiff's action against them are consolidated for disposition and are all granted.
If you are in a similar situation, seek the help of a Bronx Family Attorney and Bronx Order of Protection Attorney at Stephen Bilkis and Associates.

Issue in this Case Deals with whether Petitioner is Entitled to Status of Permanent Family Member

April 6, 2014,

A New York Family Lawyer said that, petitioner brings this Article 78 proceeding against respondents in his capacity as Commissioner of the New York City Housing Authority, and the New York City Housing Authority ("NYCHA"), seeking a court order reversing and annulling NYCHA's termination of her mother's Section 8 voucher and NYCHA's denial of petitioner's application for succession rights to her mother's Section 8 voucher. Petitioner was born in 1960 and is 49 years old. Petitioner has been diagnosed with and treated for schizophrenia paranoia. In 1983, petitioner received disability benefits from the Department of Health and Human Services for this disability. In 1986, when petitioner was about 26 years old, she and her mother, who is moved into Apartment 2B at 99-25 42nd Avenue in Corona, New York. Petitioner has had some periods of employment, most recently as a clerk in accounts receivable at Saint Vincent's Catholic Medical Center home care facility in Rego Park, New York, although it is unknown whether she is presently employed in this capacity.

A New York Custody Lawyer said that, in 2002, petitioner applied for and was granted a Section 8 voucher. According to the copies of the Housing Assistance Payment Contracts between NYCHA and the owner of the Apartment from 2002 and 2003, both petitioner and her mother were listed as tenants and authorized residents of the Apartment. Petitioner was also listed on the Section 8 affidavits of income for recertification purposes. In an effort at independence, petitioner left the Apartment in November 2004 and established a separate residence with her godmother. NYCHA was duly notified. Petitioner maintained a close relationship with her mother while she was out of the Apartment Both petitioner and her mother experienced problems with their health over this period of time. In 2008, petitioner and her mother decided that it would be easier for them to take care of each other and their various health conditions and disabilities if they were living together again. They also mutually desired to reduce their individual expenses by living together. In advance of petitioner moving back in, in June 2008, petitioner and her mother formally requested permission for petitioner to move back into the Apartment NYCHA provided petitioner's mother with a number of documents to complete and return to NYCHA. After returning the paperwork to NYCHA's offices, petitioner and her mother were told that petitioner could not move back into the Apartment without written confirmation from NYCHA. They never received any such written confirmation. However, in October 2008, petitioner's mother received a letter from NYCHA indicating that her share of the rent would increase as of November 1, 2008, presumably because petitioner's income was now being calculated into the tenant's share of rent Petitioner contacted NYCHA over the telephone and asked whether a decision had been made about permission for her to move into the Apartment. Petitioner sets forth that the NYCHA representative that she spoke to told her that she had been granted permission to move back in. Petitioner moved back to the Apartment on November 4, 2008.

A Suffolk County Family Lawyer said on October 22, 2009, petitioner's mother was struck by a vehicle and died shortly thereafter from the injuries. One week later, NYCHA cancelled the Section 8 voucher. On or about December 23, 2009, after an inquiry by petitioner's attorney about her rights to succeed to the Section 8 voucher, NYCHA sent the attorney a letter asserting that the voucher terminated with the death of petitioner's mother. Petitioner was denied succession rights because she had only been "conditionally" re-added as a resident family member of the Apartment in 2008.

A Suffolk County Family Lawyer said that, petitioner argues that she has been denied due process and that NYCHA has violated its own regulations. She contends that she was never given notice or an opportunity to dispute NYCHA's classification of her as a conditional and not a permanent family member. Petitioner further argues that NYCHA exceeded its statutory authority in distinguishing between permanent and conditional family members and that she was never given an opportunity to dispute NYCHA's determination at an administrative hearing.

A Suffolk County Custody Lawyer said the issue in this case is whether petitioner is entitled to the status of permanent family member and the right to succeed to her mother's Section 8 voucher.

The court in deciding the case said that, NYCHA asks the court to reject petitioner's claims for several reasons. First, NYCHA argues that petitioner's mother requested conditional permission for her daughter to resume living in the Apartment. Second, petitioner would not have been eligible for permanent permission to live in the Apartment under NYCHA's occupancy policy. Third, the permission request form clearly states that residents with conditional permission to reside in the premises arc not entitled to succeed to a Section 8 subsidy. Fourth, the landlord certified that petitioner was eligible for conditional residency. Fifth, NYCHA approved petitioner's conditional residency request and provided her mother, with a copy of the approved request form. Respondents argue that NYCHA's policy regarding occupancy and succession rights is a lawful exercise of its discretion and desirable rule-making designed to maximize NYCHA's ability to distribute a scarce resource, Section 8 vouchers. Respondents assert that NYCHA's policy of granting qualified adult children the status of conditional permission to reside with a parent, in order for the adult child to care for that parent, but not allowing the care giver to remain after the death of the parent, prevents those families from obtaining priority over other families that are on waiting lists for Section 8 vouchers. Respondents further maintain that NYCHA's succession policy does not require even an informal conference prior to terminating a subsidy, and that even if such a conference took place in this case, it would not change the outcome for petitioner.
Under NYCHA's policy, only family members with permission for permanent residency in the household are eligible to succeed to a Section 8 voucher. A review of NYCHA's policy for Section 8 tenants regarding occupancy and succession as of July 6, 2007, reveals that under no circumstances can a biologically related adult child of an authorized family member ever be granted permanent status. Permanent permission to join a household is restricted to: spouses or registered domestic partners of any authorized family member; dependent children of an added spouse or registered domestic partner; adults legally adopted by an authorized family member; and children under 18 years old born to or adopted by an authorized family member who is not currently residing in the household.

The court rejects those of NYCHA's arguments premised on the assumption that petitioner and/or her mother chose to request only conditional permission for petitioner to return to living in the Apartment. It is uncontroverted that the mother and her daughter were given a form checklist of documents that they were required to submit when they asked NYCHA for permission for petitioner to rejoin the household in 2008. The checklist itself is a pre-printed form which was already filled out with a check-mark next to the word "conditional" (as opposed to the other options of "permanent" or "temporary") when the form was provided to petitioner and her mother. The signed acknowledgment of receipt at the bottom of the form did not acknowledge the accuracy of the form, only that it was received by petitioner. One of the documents from the checklist that petitioner and her mother were required to submit was the Permission Request Form. A copy of the Permission Request Form that petitioner and her mother completed is annexed to respondents' answer. There is no indication anywhere on that form as to exactly what status the tenant is requesting for the additional person, except at the very top of the form.
Nothing on the form allowed the applicant or the proposed additional family member to choose whether permanent or conditional permission was being sought. Petitioner's mother either had no opportunity to request permanent status for her daughter or, if the underlined word "permanent" indicates anything, she may have believed she was affirmatively requesting permanent status for her daughter. The fact that the permission request form states that residents with conditional permission to reside in the premises are not entitled to succeed to a Section 8 subsidy is meaningless if petitioner and her mother were requesting that petitioner be granted permanent permission to reside in the Apartment. It cannot be said that petitioner or her mother knowingly waived petitioner's right to seek succession rights by choosing to seek only conditional permission for petitioner to reside in the Apartment. Similarly, the Landlord Certification for Permission that the landlord filled out and returned to NYCHA does not have an option for either permanent or conditional status; the only option on that form is for conditional status. Moreover, neither petitioner nor her mother filled out or signed that form; rather, it was filled out and signed by the landlord to the Apartment There was no affirmative waiver of petitioner's right to seek succession to the Section 8 voucher.

The court also rejects NYCHA's contention that NYCHA provided petitioner's mother, with a copy of an approved conditional residency request form. This argument is given merely lip service in the preliminary statement of NYCHA's memorandum of law and is never authenticated with any documentary evidence in the exhibits annexed to respondents' papers showing that the mother was ever sent a written approval. Even assuming, arguendo, that respondents mailed a copy of the Permission Request Form to petitioner's mother after NYCHA had determined that petitioner could resume living in the Apartment, the portion of the Permission Request Form where NYCHA indicates whether permanent or conditional residency has been approved or disapproved was not completed. Written notice was not provided to the mother or her daughter indicating that her application for permanent residency had been denied.

NYCHA's last remaining viable argument is that petitioner was never eligible for permanent residency. The issue that must be determined at the heart of this controversy, then, is whether the application of NYCHA's policy of never granting permanent status to adult children returning to live with a parent voucher holder—as applied to petitioner and to similarly situated individuals—violates lawful procedure, is arbitrary or capricious, or is affected by an error of law. In determining this issue, it is necessary to examine the federal law that established the Section 8 Program, the Housing and Community Development Act of 1974. 42 U.S.C.A. § 1437f (the "Act"). The purpose of the Act was "to provide decent and safe housing through the private sector to certain 'lower-income' families, the elderly and the disabled." The Act differed from early programs of federal housing assistance by providing government subsidized private housing instead of government constructed and managed public housing.

Furthermore, petitioner's mother was entitled to written notice of NYCHA's determination regarding her daughter's status as a conditional resident only, which was effectively a denial of permanent residency status. According to NYCHA policy, petitioner's mother would have been entitled to dispute the denial "at an informal conference with an employee at the level of Housing Manger or higher." However, since there was a clear failure on NYCHA's part to duly notify the mother in writing of the determination regarding her daughter's residency status, neither petitioner nor her mother ever had the opportunity to contest this determination.
Accordingly, the court held that the petition is granted and the matter is remanded to NYCHA for a determination, consistent with these proceedings, as to whether petitioner should have been granted permanent permission to reside in the Apartment with the right to seek succession to the Section 8 voucher.
If you are in the same situation in the above mentioned case, seek the help of a Bronx Family Attorney and/or Bronx Order of Protection Attorney at Stephen Bilkis and Associates.

Petitioner Deals With Homelessness of Her and Two Granddaughters

April 5, 2014,

A New York Family Lawyer sais this case reveals the troubling state of public housing policy in the City of New York and the lack of available counsel for low-income tenants seeking to avoid homelessness. A Bronx Family Lawyer said that, petitioner commenced this Article 78 proceeding challenging the denial of her application for a lease in her own name as the "remaining family member" of the deceased tenant of record, her husband. Respondent New York City Housing Authority (NYCHA) cross-moved to dismiss the proceeding as barred by the statute of limitations. Following the initial conference with the Court, NYCHA also filed a Verified Answer addressing the merits of the petition. Thereafter, the Court held repeated conferences in an effort to resolve the matter so that petitioner could continue to reside in the apartment, along with her adult daughter who is deaf and disabled in other respects, and her two teenage granddaughters, who are the daughters of the former. No resolution having been reached, this Court is proceeding to determine the narrow issue presented; that is, whether the decision by the Hearing Officer upholding NYCHA's denial of petitioner’s request for a lease was arbitrary and capricious. However, this decision is not intended to in any way tie the hands of Judge who is being presented with far broader issues in the related holdover proceeding pending before him in the Bronx Housing Court.

A New York Custody Lawyer said that, in or about the year 2000, petitioner’s husband became the tenant of record in apartment 11G, a four-room apartment in Sedgwick Houses located at 156 West 174th Street in the Bronx. The records confirm that an adult daughter of petitioner’s husband also resided in the apartment until she moved out some time in 2005. Whereas the husband had listed the adult daughter’s income on his annual income affidavit filed every spring in the early years of his tenancy, he did not list her in 2006 or 2007. On his April 5, 2007 income affidavit, the father listed his name and the name of his wife. For some reason, the surname was crossed off the section of the affidavit entitled "Persons Living in Apartment." However, petitioner signed the form as "co-lessee" and included her annual income of $32,000 for work as a home attendant. Neither of those entries was crossed out. The NYCHA Interview Records contain no entries confirming when petitioner moved into the apartment and what communications NYCHA had with the tenant upon receipt of the income affidavit. Indeed, the file contains no entries whatsoever written by a Housing Assistant during the critical three-year period from February 17, 2004 through May 4, 2007, after which the tenant passed away.

A Westchester County Family Lawyer said that, according to NYCHA records, the husband submitted a formal written request to NYCHA on or about May 4, 2007, for his wife to permanently join the household. The husband explained that he was ill and wanted his wife to live in the apartment and care for him. On May 9, 2007, NYCHA approved the request. On May 11, 2007, the husband passed away. Petitioner then asked NYCHA for permission to stay in the apartment and obtain a lease in her own name, and she followed all the required procedures to pursue that request. The Housing Manager denied the request, and the Borough Manager agreed, finding that she was not eligible for a lease in her own name because she had not been living in the apartment with the husband with NYCHA's permission for the requisite one-year period before the tenant of record died.

A Westchester County Custody Lawyer said that, on March 4, 2008, Hearing Officer Pannell rendered her written decision. Thus, while NYCHA's knowledge of a remaining family member's occupancy is legally significant, even absent written permission, no evidence was offered, and no questions were asked, specifically addressing that point. Instead, NYCHA counsel scrupulously avoided the issue entirely. Based on these facts, the Court perceived a good faith basis for a request by the adult daughter to obtain a lease as a remaining family member of the tenant of record, as she had been residing with the tenant (her father) for well over a year before his death with the knowledge of NYCHA's employee and the implicit approval of NYCHA. As the family had been unable to retain counsel, he reluctantly agreed to file such a request with NYCHA. However, the Housing Assistant refused to accept it, claiming it was untimely, and NYCHA counsel refused to take any steps to allow the lease request to be filed. Notwithstanding the fact that petitioner would have an absolute right to remain in the apartment with her daughter should she obtain a lease in her own name, NYCHA counsel adamantly asserted that petitioner’s predicament was wholly separate from that of her daughter, and she urged the Court to determine this proceeding without regard to the still-pending holdover proceeding or the possibility that her daughter could obtain a lease to secure the continued occupancy of the entire family. The determination follows.

The issue in this case is whether petitioner’s action is barred by the statute of limitations.
The threshold issue is the timeliness issue raised by NYCHA's cross-motion to dismiss. Pursuant to CPLR §217(1), a party must commence an Article 78 proceeding "within four months of the date after the determination to be reviewed becomes final and binding upon the petitioner." As confirmed by the Court of Appeals in a 1983 case decision, the "four-month Statute of Limitations did not begin to run until the petitioner has received notice of the "agency's determination."

In the case at bar, the Hearing Officer's determination is dated March 4, 2008. It was accompanied by a Notice of Review which stated that the matter was "under review by the members of the New York City Housing Authority." NYCHA issued a Determination of Status approving the Hearing Officer's decision on March 19, 2008. The March 19 document is the key document for purposes of the statute of limitations, as the determination was not final until that document was issued and received.

NYCHA's cross-motion is supported by two affidavits. The first is from a NYCHA employee whose job was to prepare the Determination of Status for mailing to petitioner. Having no independent recollection, the NYCHA employee attested to her "regular business practice" of placing a copy of the Determination in a "window" envelope, folded so that the address was visible through the window. She then customarily placed the envelope in an outgoing mail box in the office for pick up by another employee. She further attested that she had made a computer entry confirming that she had placed the petitioner envelope with the Determination in the outgoing mail box and that she had not received it back in the mail. No computer printout is attached

Court Discusses Family Member Grievance Hearing

April 4, 2014,

A New York Family Lawyer said that, pro se petitioner brings this Article 78 proceeding and seeks a judgment reversing respondent New York City Housing Authority's ("respondent" or "Housing Authority") denial of her application to open her default for failing to appear at her remaining family-member grievance hearing. Petitioner claims she has succession rights for Apartment 2D at 1149 229th Drive North, Bronx, New York (Premises), which was previously leased to her deceased mother. Petitioner defaulted in appearing for her remaining-family-member grievance hearing and, following an inquest, the Housing Authority determined that petitioner did not qualify as a remaining family member. The Housing Authority denied petitioner's application to open her default because she failed to explain her delay in making the application and due to her delinquency in use and occupancy rental payments. Petitioner challenges this determination. Respondent opposes.
The Housing Authority is a corporate governmental entity created to build and operate low-income housing in New York City. Since the federal government funds and regulates public housing, the Housing Authority must annually certify to the Department of Housing and Urban Development (HUD) that it has admitted individuals and families in accordance with HUD regulations. HUD mandates that the Housing Authority regularly monitor the composition and income of each family that has been admitted into public housing. Tenant families also have corresponding obligations to request respondent's approval before adding any family members as occupants of a unit, and to supply any information necessary when the Housing Authority conducts examinations of family income and composition.

A New York Custody Lawyer said that pursuant to Housing Authority regulations, there are two exceptions to its formal tenant selection process where a tenant of record can lawfully add "authorized family members" to live in their unit. The first is where the Housing Authority allows another individual to become a permanent member of the tenant's household. To add a person to the household, the tenant of record must obtain the written consent of the building development manager. The second exception allows a remaining- family -member to take over a lease if the tenant of record either moves or dies. To qualify under this exception, the remaining-family-member must have moved into the apartment lawfully, remained in the apartment continuously, and be eligible for public housing. Lawful members of a tenant's household include the original tenant family, a person born to the tenant of record or to an authorized permanent family member, a person legally adopted by or judicially declared to be the ward of the tenant of record or an authorized family member, or a person who receives written permission to reside in the apartment permanently. In each instance, the person claiming remaining- family -member status must have become an authorized family member of the tenant household and must have remained in the apartment continuously from their date of entry.

A Nassau County Family Lawyer said that, on July 11, 2003, the Housing Authority revised its remaining-family-member policy regarding any requests for permanent occupancy that were either pending or made on or before November 24, 2002. The revised policy provides that certain relatives of the tenant of record "may have remaining-family-member rights if they receive the Housing Manager's permission for permanent occupancy in writing on or after November 24,2002 [and they] thereafter remain in continuous occupancy, i.e., on all [of an] Occupant's Affidavits of Income from the date of the issuance of written permission for permanent occupancy from the Housing Manager for not less than one year immediately prior to the date the tenant of record vacates the apartment or dies, subject to independent verification from the Housing Manager."
The Housing Authority provides a grievance procedure to determine if an occupant qualifies as a remaining-family-member. First, the grievant must meet with the development manager to discuss the claim. If the development manager does not offer the grievant a lease, he must submit the grievant's file to the District Office for further review. If, after review, the District Office denies the grievant's request, but determines the grievant has made some showing that she could qualify for relief, the grievant is given the opportunity to request a formal hearing. The Housing Authority will then notify the grievant of a hearing date before an impartial hearing officer. The notice also informs the grievant of her right to appear in person, have witness testimony and be represented by counsel. After the hearing, the presiding officer determines whether the grievant should be granted a lease to the apartment as a remaining- family-member.

Finally, a Staten Island Family Lawyer said members of the Housing Authority's Board review the hearing officer's decision and make a final determination. The deceased mother began living in the Premises in or around August 18, 1961. During this time, she lived with her husband and their five children, including petitioner. Over time, her husband passed away and all of the children moved out. Petitioner moved out in 1977. Moreover, the NYCHA Affidavits of Income for the Premises from July 15, 1999 through June 7, 2005 list Ms. Campbell as the sole occupant. Respondent's Exhibit D. When Ms. Campbell passed away on November 23, 2005, she was still listed as the Premises' only occupant. As of February 16, 2006, one of petitioner's brothers was living in the Premises with his nieces. He informed the Housing Authority that he would be moving out by the end of the month. In or around March 3, 2006, petitioner wrote the Housing Authority stating that since she and her two children had been living at the Premises for some time, she wanted a new lease on the ground that she qualified as a remaining- family -member.

Pursuant to Housing Authority regulations, on March 15, 2006, petitioner met with the Housing Manager. Petitioner claimed she qualified as a remaining-family-member because she was an original member of the tenant family who moved back in when her mother got sick. The Housing Manager denied petitioner's remaining family member request both because the deceased mother was the only listed tenant of record for the Premises and had never made a formal request to add petitioner to the household. Id. On March 21, 2006, the Housing Authority sent petitioner a letter explaining that she was entitled to an informal grievance hearing with the Bronx Borough Management Office and that she may submit any further documentation to that office in support of her remaining family member claim.
In a letter dated September 28, 2006, respondent notified petitioner that her formal hearing would take place on October 31, 2006 at 11:00 a.m. In this letter, the Housing Authority notified petitioner that she "may appear in person with witnesses and be represented by counsel or other representative of your choice. If you desire legal representation and cannot afford a lawyer, it is suggested that you contact one of the agencies which provide free legal services." Respondent also served petitioner with a copy of its affirmative defenses and counterclaims as well as copies of the procedures which govern the hearing.

A Bronx Order of Protection Lawyer said that, in September 2007, the Housing Authority commenced a summary holdover proceeding against petitioner in Bronx County Civil Court. Petitioner failed to appear for a hearing in September 2007, and an inquest was held before Civil Court Judge. In a decision dated December 5, 2007, Judge granted a final judgment of possession of the Premises in favor of the Housing Authority. Respondent's Exhibit BB. On April 17, 2008, the court issued a warrant of eviction. Respondent's Exhibit AA. On May 20, June 5 and June 12, 2008, petitioner moved by Order to Show Cause, for an extension of time to stay the eviction. Each request was denied. On July 2, 2008, petitioner again moved, by Order to Show Cause, for an extension of time to stay the eviction. Once again, the Judge denied the motion after petitioner failed to appear. On July 28, 2008, the Marshal executed the warrant of eviction and petitioner was evicted from the Premises. Respondent's Exhibit DD. On August 1, 2008, petitioner again moved, by Order to Show Cause, to restore to her possession of the Premises. In a decision dated August 4, 2008, the Judge denied the motion.

The issue in this case is whether the judgment of NYCHA reversing respondent’s denial of her application to open her default for failing to appear at her remaining family-member grievance hearing.

A court reviewing an Article 78 proceeding must judge the propriety of an administrative action solely on the reasons cited by the administration. Such an action must be upheld unless it "shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law." CPLR section 7803 states that the following questions may be raised in an Article 78 proceeding: "Whether a determination was made in violation of lawful procedure, was effected by error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed."

In order to vacate a default in an Article 78 proceeding, a petitioner must demonstrate both a reasonable excuse for the default and a meritorious claim. Here, petitioner has neither demonstrated a reasonable excuse for failing to appear at her hearing nor a meritorious remaining-family-member claim. Petitioner contends that she did not appear for her formal grievance hearing because she was at OLM Hospital due to difficulty breathing. To date, petitioner has not offered any documentary evidence to support this assertion. Petitioner further claims that she called "250 Broadway" to alert respondent of her predicament. However, petitioner once again fails to offer any evidence in terms of when she made the call and/or who she spoke with to back up this assertion.

Moreover, petitioner also has not presented any proof evidencing a meritorious remaining-family-member claim. Both prior to and following her mother's death, petitioner failed to get permission from the Housing Manager to reside in the Premises. She was not listed as a tenant on any of the Premises Affidavits of Income filed between 1999 and 2005. Therefore, the decision by Hearing Officer Pannell to deny petitioner's request to vacate her default was neither arbitrary nor capricious. (denial of remaining family member claim affirmed where, although petitioner was a member of the original tenant family no affidavits of income for four years leading up to her parents vacator of premises listed her as an occupant); (where petitioner not in compliance with one-year rule, no basis to hold that NYCHA's decision to deny remaining family member claim was arbitrary or capricious); (Housing Authority's determination that petitioner was not remaining family member entitled to succession rights of subject apartment neither arbitrary nor capricious where record showed, inter alia, that deceased tenant's affidavits of income showed that she was sole occupant of apartment): (Housing Authority's denial of petitioner's application for remaining family member status affirmed and held as neither arbitrary nor capricious where, inter alia: respondent did not give tenant of record permission to add petitioner to household; petitioner never obtained written permission from housing manager to join household; affidavits of income for years petitioner allegedly lived in apartment listed tenant as sole occupant; Housing Assistant testified that prior to tenant's death he never requested for anyone else to join household).
Accordingly, it is ordered and adjudged that the petition is denied and the proceeding is dismissed. This constitutes the decision and judgment of the Court

If you have grievance with the NYCHA, seek the assistance of a Bronx Family Attorney and Bronx Order of Protection Attorney at Stephen Bilkis and Associates.

Court Decides Case Involving Jurisdiction Issue

April 3, 2014,

A New York Family Lawyer said that, defendant, a fugitive for nearly twenty years after pleading guilty to attempted criminal sale of a controlled substance in the third degree in 1991, and moves to either vacate that plea, or have the Court dismiss the case outright. Defendant is not a United States citizen, and claims to have been granted lawful permanent resident status in 1994. Federal authorities in Miami discovered the 1991 warrant issued for defendant's arrest after he failed to appear for sentencing when defendant attempted to reenter the United States in November 2010 using a passport issued by the Dominican Republic. He was returned to New York to face his long-avoided sentence. He also faces removal from the United States.

A Bronx Visitation Lawyer said that, defendant makes legal challenges to the sufficiency of the plea allocution itself, as well as arguing that his legal representation in 1991 was insufficient under the Supreme Court's 2010 decision. Defendant also challenges the Court's jurisdiction to pronounce sentence twenty years after he pled guilty. Finally, defendant makes a post-plea application to have the case dismissed in the interest of justice, ostensibly because he faces mandatory removal by the Department of Immigration and Customs Enforcement as a result of the plea, and will be separated from his three children, who were born in the United States between 1994 and 2001. After filing an affirmation in opposition to all parts of the defense motion, the People entered into new plea discussions and offered defendant an opportunity to substitute a plea to a misdemeanor for the felony plea, with the stated purpose of aiding defendant in the removal proceeding. Upon review of the court file, reports prepared by the Department of Probation in 1991 and in 2010, as well as both parties' written submissions, and after considering the subsequent oral application to replace the felony conviction, the Court denies the motion.
Defendant was arrested on November 20, 1990, inside 1085 Nelson Avenue in Bronx County. According to the felony complaint, an undercover police officer approached an unnamed, apprehended juvenile at that location, and indicated he wished to buy "perico," a Spanish word commonly used in narcotics transactions to refer to cocaine. The juvenile directed him to defendant. The officer handed defendant prerecorded buy money, and defendant handed the officer cocaine wrapped in tinfoil. According to an affirmation submitted by ADA in response to an omnibus motion, defendant was arrested within moments of the sale at the same location, and was found in possession of the buy money and fourteen additional tinfoil-wrapped cocaine packages. He was immediately identified by the undercover police officer as the person who sold him cocaine.

A New York Child Custody Lawyer said that, defendant was subsequently indicted. Defendant's motion for a hearing to suppress the "buy money" and cocaine recovered from his person was granted. Defendant made five court appearances after he was arraigned on the indictment on January 7, 1991. On June 26, 1991, defendant appeared before the Honorable Judge, and pled guilty pursuant to the agreement his attorney negotiated. During the plea allocution, defendant told the Court his full name and he was 28 years old. Defendant affirmed he was pleading guilty to a reduced charge of attempted criminal sale of a controlled substance in the third degree in exchange for a promised sentence of one year in jail. He acknowledged that the plea was voluntary, and he agreed to waive his right to appeal as well as his right to "early release" from jail. Defendant further acknowledged he understood all of his Boykin rights, and was waiving them as well. ADA stated on the record that the People were prepared to "prove beyond a reasonable doubt that on November 20, 1990, at approximately 4:45 pm inside apartment number 5A located at 1085 Nelson Avenue in the Bronx this defendant did sell one tin foil to an undercover police officer in exchange for $20.00, and laboratory analysis indicates that the item sold was, indeed, cocaine." Defendant, himself, then admitted he sold cocaine on the date and time, and at the location the People indicated.

A Westchester County Family Lawyer said that, on November 18, 2010, defendant was returned to the Bronx for sentencing, and an updated investigation from the Department of Probation was ordered. On February 11, 2011, defendant filed a motion seeking the aforementioned relief. In a sworn affidavit submitted in support of the motion, defendant states, "I was not guilty of sale or possession of drugs. I have never sold or possessed illegal drugs ever in my life." He further states that "various attorneys from the Legal Aid Society represented me at different times" and that "each attorney... was aware that I was a citizen of the Dominican Republic and that I was not a United States Citizen; that I was legally here in the United States on a ten year tourist visa." He also claims he "lived in the United States since 1987 when I came on a student visa with a scholarship. I obtained a tourist visa in 1990. My family had been living in the United States. In 1994 I obtained my green card."

A Bronx Order of Protection Lawyer said that, on April 20, 2011, the parties proposed a disposition in lieu of having the Court rule on the motion, in which the People would agree to allow defendant to withdraw his guilty plea to the felony drug sale and then substitute a plea to the misdemeanor charge of criminal facilitation, under Penal Law 115.00(1). That charge, which is not in the indictment, would require an admission, inter alia, that defendant aided another person who defendant knew was going to commit a felony, which in this case, would have to be criminal sale of a controlled substance. Defendant is anxious to accept this disposition. Both defense counsel and the People state they came up with this proposal because they believe a conviction for this crime would be looked upon more favorably in the pending immigration court removal proceeding.

The issue in this case is whether the motion of defendant to dismiss the case should be granted.
The Court does not agree to this proposal for several reasons. First, this disposition would violate the Criminal Procedure Law's plea bargaining restrictions. CPL 220.10(5)(a)(iii) provides that a defendant charged with a class B felony in an indictment must plead to at least a class D felony. Therefore, accepting this disposition would create an appellate issue that would likely result in a reversal of the conviction. The Court also refuses to accept an alternative proposal to allow defendant to substitute a plea to misdemeanor narcotics possession, which counsel also believes would be looked upon more favorably by the immigration court, as this substitute plea would also violate CPL 220.10(5)(a)(iii).

Moreover, the record made by both defendant and the People is clear — they have reached this agreement solely to aid defendant in his attempt to avoid removal from the United States. As the Court has continuously reminded both the People and defense counsel, based on its own understanding of immigration law, defendant's admission to selling narcotics in this case would be admissible in his immigration proceeding, unless there was a legal or due process vacatur of the plea. As both sides acknowledge, a non-citizen convicted of selling narcotics in a state court faces mandatory removal from the United States. 8 USCS § 1227(a)(2)(B)(I). "An alien remains convicted of a removal offense for federal immigration purposes when the predicate conviction is vacated simply to aid the alien in avoiding adverse immigration consequences and not because of any procedural or substantive defect in the original proceeding."
Defendant factually admitted he sold narcotics, and that guilty plea remains part of the overall record in this case, The evidence before the Court, and presumably the grand jury, shows that after working with an accomplice under the age of sixteen, defendant accepted "pre-recorded buy money" from a police officer posing as a customer, and then personally handed narcotics to that officer. When he was apprehended, he had the marked money tendered for the drugs in his possession, along with fourteen additional tinfoil packages of cocaine. This is far more than mere criminal facilitation. Defendant's plea admission would almost certainly subject him to removal in this case, regardless of whether the judgment of conviction would reflect the actual felony or a pinch-hitting misdemeanor. Indeed, the advice given about this proposal appears not only to be affirmatively wrong, but is precisely the type of advice the Supreme Court found to be ineffective. For all these reasons, the Court cannot accept this proposal.

Defendant moves to withdraw his guilty plea because he now claims he is not guilty of selling, or even possessing, any narcotics in this case. He also argues that the plea allocution was not sufficiently detailed and therefore it was not a "knowing and voluntary" plea. This application is denied.
At any time prior to sentence, a court is entrusted with discretion to allow a defendant to withdraw a previously entered plea of guilty and be restored to pre-pleading status. CPL 220.60(3). A guilty plea is presumed valid, and a defendant moving to vacate or withdraw a plea has the burden of coming forward with a credible claim that the plea is invalid. A generalized claim of innocence does not in and of itself provide grounds to allow withdrawal of an otherwise validly entered guilty plea. Only in a rare instance will a defendant be entitled to a hearing on a motion to withdraw a guilty plea. At the outset, the Court does not find defendant to be credible. This is relevant not only to the decision on this branch of the motion, but all other parts as well. Defendant has defrauded the Court, as well as the Department of Probation, by claiming two completely different identities, and does not explain whether he is really the person named who was born in 1962 or a person named otherwise, born three years earlier. His current attorney, who provided the Court with a copy of defendant's passport indicating he was born in 1959, is apparently even confused, since he states in his own affirmation that defendant was only twenty-eight years old in 1990, which would make the date of birth on the passport untrue as well.
Defendant also moves to have his plea vacated because he claims his former attorney never discussed any potential immigration-related consequences that would flow from his conviction in this case. The Court agrees with the decision in a 2011 case that because of the "professional norms prevailing when defendant pled guilty" in this case, prior counsel would not have been ineffective even if she "failed to advise defendant of the immigration consequences of his guilty plea." Assuming, arguendo, that the said case must be applied retroactively to any case in which a defendant alleges that an attorney failed to provide immigration-related advice to a non-citizen prior to that person's entering a guilty plea, defendant's motion nonetheless fails to state a viable claim of ineffective assistance of counsel.

Accordingly, this part of the motion is denied as well.

Defendant next asks the Court to dismiss the case, arguing that it has lost jurisdiction to impose sentence due to the passage of almost twenty years since the guilty plea. CPL 380.30(1) provides that the sentence for a convicted criminal defendant "must be pronounced without unreasonable delay;" otherwise a sentencing court may be divested of its jurisdictionNew York has a strong policy against unreasonable delays in pronouncing sentence, and a defendant is entitled to be promptly sentenced after conviction, and entry of judgment may not be "indefinitely deferred or postponed." The passage of time alone is not dispositive of whether this right to prompt sentencing has been violated; the time element must be assessed concomitantly with the reason for the delay. Thus, where the People know an absconding defendant's whereabouts, they must make diligent efforts to secure the defendant's presence for sentencing, or risk dismissal. However, where a defendant makes a purposeful decision to abscond prior to sentencing, and conceals his or her identity to prevent re-apprehension, that defendant has forfeited his or her claim that the court has lost jurisdiction to pronounce sentence when they are finally returned.

Defendant does not contest the fact that he wilfully absconded. He also does not allege any particular reason for failing to return to Court to face sentencing. The most obvious motive is a generic one many individuals have for failing to appear for sentencing when they know they are facing incarceration — they simply do not want to go to jail. But it is likely there was another motive that relates directly to his right to remain in the United States at that time. Although defendant now claims not to have known of any particular immigration consequences that would befall him as a result of the plea in this case, the probation report prepared after the plea notes defendant claimed he advised immigration authorities about his arrest in this case. If that statement were true, defendant would have been likely advised by immigration authorities that the law in 1991, as it still is today, would require that he be removed from the country based on the narcotics sale he admitted committing. That would have provided yet another motive for his purposeful decision to abscond, and then reappear with a different identity.

Thus, this is not a case where there was an "unreasonable delay" in bringing defendant before the Court for sentencing caused by the People. To the contrary, all of the delay in imposing sentence lies squarely and completely at defendant's feet. Accordingly, this part of defendant's motion is denied as well.

For the reasons stated herein, defendant's motion is denied in all respects. This constitutes the Decision and Order of the Court.

If you have been denied of your constitutional rights, seek the assistance of a Bronx Order of Protection Attorney and Bronx Visitation Attorney at Stephen Bilkis and Associates.

Court Decides Whether to Vacate Child Support Judgment

April 2, 2014,

A New York Family Lawyer said that, this proceeding was commenced by Petitioner, pro se, by Order to Show Cause dated January 29, 2009, pursuant to Civil Practice Law and Rules ("CPLR") Article 78 to vacate a Child Support Judgment of Arrears issued in favor of respondent, Office of Temporary Disability Assistance, Division of Child Support Enforcement ("OTDA"), on the grounds that "it has been determined by law to be uncollectible."

A New York Child Custody Lawyer said that, before responding to the merits of the Petition, OTDA cross moved to dismiss the petition on three grounds, viz: 1. The Petition failed to state a cause of action. 2. That pursuant to General Obligations Law § 17-101, the Statute of Limitations is inapplicable, and 3. Delgado has failed to exhaust his administrative remedies. OTDA further seeks dismissal claiming that OTDA is not the proper respondent entity in a proceeding of this nature.

A New York City Family Lawyer said that, on August 23, 1983, Family Court, Bronx County, ordered petitioner to pay the new York City Department of Social Services ("DSS") $90.00 per month or about or about $5,280 per year, commencing August 29, 1983, to reimburse DSS with respect to support for his two sons, Gabriel, born February 3, 1981 and Alexander born March 5, 1983 (the "children"). DSS was to receive the funds because the children and their mother were on public assistance. By reason of petitioner’s failure to make the required payments, DSS took petitioner to Bronx Family Court, which, on November 6, 1996, entered an order fixing the arrears due to DSS at $28,801.35 and modified the 1983 order to terminate is prospectively, thereby terminating petitioner’s obligation to provide further support for his children after such date.

A Manhattan Family Lawyer said that, subsequently, petitioner made a series of attempts to have the arrears fixed in the November 6, 1996 order reduced. He has been unsuccessful in these applications. On July 29, 1998, Bronx Family Court reiterated that the arrears to DSS were $28,801.35. On July 16, 1997 and December 19, 1997, petitioner sought through Bronx Family Court, New York County, in its Centralized Child Support Enforcement Term, to adjust the arrears. These request were denied. He again applied to New York Family Court, and was heard on May 19, 1999, seeking to have the order of Support terminated. The hearing examiner denied the petition because the Order had already been suspended. In this application petitioner acknowledged the amount of arrears.

The issue in this case is whether the motion to vacate the child support judgment should be granted.

Pro se litigants who wish to assert a claim against a City agency are often faced with assertions by the Respondent agency that the wrong body has been cited in the petition, as OTDA has claimed here that the City of New York should have been named. While a technical violation of procedure and one for which a represented petitioner may have to bear the risk of dismissal, it is unfair to the unrepresented to dismiss for this purpose, especially where the City has had full and timely notice as evidenced by the filing of response by the New York City Corporation Counsel within the time set for OTDA's response to the Order to Show Cause and the inclusion in such response of an extensive cross-motion to dismiss. As the being sued is another mayoral agency of the City (unlike an independent fund or non-mayoral entity), and as there is clearly no prejudice to the City and its agencies occasioned by the naming of an improper respondent entity, the Court will not deprive petitioner of the opportunity to have his claim considered by reason of this technical pleading defect. Accordingly, the Petition shall be deemed amended to submit proper party respondent, the City of New York or such agency as shall be properly designated by OTDA as the proper party.

Under New York Law, the driver's license of a person in arrears on an order of support may be suspended by the New York State Department of Motor Vehicle ("DMV"). Under the threat of such a suspension, on October 1, 2005, Delgado signed a payment agreement to pay DSS $50.00 per week towards the arrears to avoid the suspension of his license. It was to no avail as Delgado defaulted on that agreement and on May 2, 2006, his license was suspended.

Again, petitioner petitioned New York Family Court on November 1, 2005, to adjust the arrears. Such petition was dismissed on November 1, 2005 DSS has also sought to enforce the arrears payment through the State Department of Taxation and Finance and Federal Internal Revenue Service to capture petitioner’s tax refunds and to the United States State Department to enforce the obligation by a denial of petitioner’s passport. As the arrearage was set by New York Family Court, and as no appeal has been taken as to the fixation of the arrearage to the Appellate Division, the amount of arrearage is not subject to question. The enforceability of the arrearage as ordered is, however, another matter.

Petitioner asserts that enforcement of the arrearage is barred by the Statute of Limitations. OTDA asserts that the proper limitation period is the twenty-year statute for the enforcement of support order, citing CPLR § 211 (e) is inapplicable here. Thus, the resolution of this dispute turns on the State of New York law prior to effectiveness of CPLR § 211 (e). Petitioner in turn asserts that the applicable limitation period is six years. CPLR § 211 (e) which was added to CPLR § 211 (e) by NY Laws 1987, Chapter 815 and became effective on August 7, 1987 expressly provides "This section shall only apply to orders which have been entered subsequent to the date upon which this section shall become effective." Accordingly, as the order in question predates the effective date of CPLR § 211(e), CPLR § 211(e) is inapplicable here. Thus, the resolution of this dispute turns on the State of New York law prior to the effectiveness of CPLR § 211(e).
The Respondents assert that General Obligation Law ("GOL") § 17-101 extends the Statute of Limitations on petitioner’s obligation. As GOL § 17-101 was in force prior to August 7, 1987 (when CPLR § 211(e) became effective), its impact on petitioner’s claim must be considered by this Court.
On October 31, 2005 he signed an agreement to pay DSS $50 per week on account of the arrears, which agreement stated the amount of arrears. Under GOL § 17-101, such agreement constitutes a written acknowledgment of the debt so as to "take an action out of the operation of the provisions of limitations of time for commencing actions under the "CPLR."

Thus, the commencement date of his obligation for statute of limitation purposes is no earlier than October 31, 2005. As this proceeding was commenced in January 2009, even if the pre-August 7, 1987 six year state of limitation is applied, he cannot assert any statute of limitation basis for relief against the collection of the arrearage as against him. Respondents further argue that the defense of State of Limitations is solely to be used as a defense and not the basis for an affirmative action to stop collection efforts. While usually true he presents an unusual situation where the efforts to collect the debt include license suspensions and passport withholding, powers of coercion not available to a non-governmental creditor. However, because this case may be decided on his acknowledgment of the obligation in 2005, this Court need not address whether he may assert the Statute of Limitations in a CPLR Article 78 proceeding, or event in a Declaratory Judgment action, which he has suggested this CPLR Article 78 proceeding may be converted to address this issue.

The Court will also not, as it need not, address Respondents assertion that petitioner has failed to exhaust his administrative remedies, except to note that for years Respondents have been successfully opposing his attempts to modify the arrears judgment on the ground that it was final.
Thus, for the reason set forth above Respondents have established their entitlement to have the petition dismissed, the petition is dismissed. This is the Decision and Order of the Court.
If you have issue regarding child support, seek the legal assistance of a Bronx Child Support Attorney and/or Bronx Family Attorney at Stephen Bilkis and Associates.

Court Decides ACD Case

March 31, 2014,

A New York Family Lawyer said that, these motions, numbers 98 and 100, seeking intervention and temporary relief are consolidated for disposition. In this long running case that this court has presided over since its inception and that is now post trial, two mothers seek to intervene on behalf of themselves and their families, requesting that this court stay their imminent eviction from homes where they have resided for many years. They claim that Social Services Law § 350 (1) (a), the decision of the New York State Court of Appeals and this court's decision after trial and judgment require that shelter allowances, under the Safety Net Assistance (SNA) program (Social Services Law §§ 343-360) and the Temporary Shelter Supplements (TSS) regulations (18 NYCRR 370.10) are adequate to cover the reasonable costs of housing in New York City.

A New York Custody Lawyer said that, the original plaintiffs brought this action under the public assistance program known as Aid to Dependent Children (ADC). ADC was the state promulgation of the federal Aid to Families with Dependent Children (AFDC) program. In 1990, the New York Court of Appeals determined that New York's Social Services Law § 350 (1) (a) imposes a duty on the State Commissioner of Social Services to establish shelter allowances for ADC recipients bearing a reasonable relationship to the cost of housing in New York City. In so holding, the Court of Appeals relied on the statute's express language: "1. (a) Allowances shall be adequate to enable the father, mother or other relative to bring up the child properly, having regard for the physical, mental and moral well-being of such child, in accordance with the provisions of section one hundred thirty-one-a of this chapter and other applicable provisions of law. Allowances shall provide for the child support, maintenance and needs of one or both parents if in need, and in the home and for the support, maintenance and needs of the other relative if he or she is without sufficient means of support, provided such parent, parents and relative are not receiving federal supplemental security income payments and/or additional state payments for which they are eligible. The social services official may, in his discretion, make the incapacitated parent the grantee of the allowance and when allowances are granted for the aid of a child or children due to the unemployment of a parent, such official may make the unemployed parent the grantee of the allowance." Section 350 (1) (a) remains unchanged today.

A Queens Family Lawyer said that, the Court of Appeals then remanded the case back to this court for a determination as to whether the shelter allowances that the Commissioner had established previously in 1988 were adequate under the statutory standard. After a 3½-month trial, this court found that the 1988 shelter allowances did not bear a reasonable relationship to the cost of housing in New York City and ordered the Commissioner to "develop and submit to the Secretary of State for promulgation by March 2, 1998 or, on application to the court, by a reasonable date thereafter, a proposed schedule of shelter allowances for and any successor program." The Appellate Division affirmed this decision. To date, the Commissioner has not complied with the court's order, but recently, on July 19, 2002 and in February 2003, the Commissioner proposed regulations to increase shelter allowances. Thus, the shelter allowances for New York City remain inadequate.

A Long Island Family Lawyer said because the court had found that shelter allowances did not bear a reasonable relationship to housing costs in New York City and, in order to avoid the need for repeated intervention motions in this action, this court directed the parties to operate an interim relief system for families with children who face eviction solely because of the inadequacy of the shelter allowance schedule. Plaintiffs contend that today the State routinely approves requests for interim relief according to the following schedule: Family Size 1 2 3 4 5 6 7 Allowance $450 $550 $650 $700 $725 $750 $775 The State adopted these figures in the early and mid-1990's. Plaintiffs contend that, because housing costs have continually escalated since that time, this schedule is about $100 to $200 below the actual housing costs today in New York City for each household size for families who face eviction.

A Bronx Order of Protection Lawyer said that, both plaintiffs seek to intervene in this action on the grounds that their situation has questions of law or fact in common with those of the action. Plaintiffs also seek to join their landlords as defendants. After intervening, plaintiffs will seek to amend the complaint to bring before the court "additional or subsequent transactions or occurrences" involving the substantial increases in both rent levels and homelessness and the changes in the statutory scheme since the trial of this case in 1991.

A Bronx Child Custody Lawyer said that, the main relief plaintiffs seek is equitable. Plaintiffs seek (1) a judgment declaring that the schedule of maximum shelter grants for families residing in New York City set forth in 18 NYCRR former 353.3 (now 18 NYCRR 370.10 [the TSS regulations]) is inadequate; (2) an injunction permanently enjoining the State defendant from applying a maximum rent schedule for public assistance families residing in New York City that does not enable these families to obtain and maintain housing in New York City; and (3) an order directing the State to pay all of plaintiffs' arrears and provide them with a monthly shelter grant of the full amount of their rent less any third-party contributions. Plaintiffs also seek attorneys' fees pursuant to 42 USC § 1988.

The issue in this case is whether plaintiff’s motion for temporary relief should be granted.
The parties do not dispute that, but for the current time limits, plaintiffs, as parents with minor children facing eviction, would qualify for family assistance under the FA statute. Defendants predicate most of their opposition to all of the relief that plaintiffs seek on the argument that the adequacy standard from New York's Social Services Law § 350 (1) (a) does not apply to SNA recipients and therefore plaintiffs lack standing to use section 350 (1) (a) as a basis to challenge the State's denial of their applications. Plaintiffs argue that the State has an obligation to provide adequate shelter allowances no matter the funding source. Because the other issues in the case rise and fall upon whether the adequacy standard from section 350 (1) (a) applies to SNA, the court will address this issue first.
A plain reading of section 350 (1) (a), including what that statute does not say, favors plaintiffs' position. Section 350 (1) (a) makes no mention of limiting its applicability to recipients of FA, or even to families who have received cash assistance for more than five years. Indeed, the statute does not even mention FA. Surely the Legislature could have expressly limited section 350 (1) (a) to FA recipients had it meant to do so. The Legislature had ample opportunity in 1997 when it undertook a comprehensive amendment to the State's welfare laws. At that time, the Legislature took care to insert references to "family assistance" where it wanted those words to appear. In chapter 436 (§ 37) of the Laws of 1997, the Legislature looked directly at section 350 of the Social Services Law and repealed some and amended other parts of that section, including paragraph (c) of subdivision (1). Thus, the Legislature could have amended section 350 (1) (a). It did not. Accordingly, it is clear that the Legislature intended section 350 (1) (a) to continue to apply as it had before.

Now for what the statute does state. By its plain language, section 350 (1) (a) applies to families with minor children. Section 350 (1) (a) requires that shelter allowances be adequate to enable parents "to bring up the child properly, having regard for the physical, mental and moral well-being of such child in the home." (Emphasis supplied.) The statute contains no restriction on the funding source. Thus, the allowances that must be "adequate" under section 350 (1) (a) include shelter allowance payments for families with minor children under whichever program those allowances are paid.

This reading is consistent with this court's language in this case making the judgment applicable to "any successor program" to the Aid to Dependent Children program. This language meant to ensure the adequacy of shelter allowances in any future program that provides public assistance to families with dependent children. To the extent that the SNA program assists families with dependent children who reach their federal time limits, the program serves precisely that purpose. Accordingly, the "successor program" language of the judgment covers families with dependent children who transition into the SNA program.
Title 10 of the Social Services Law is entitled "Aid to Dependent Children." Section 141 of the 1997 Welfare Reform Act provided that "references to `aid to dependent children' shall refer to the family assistance program." The State argues that because section 350 (1) (a) is located within title 10, it thus only applies to the FA program. This argument is a non sequitur. That section 350 (1) (a) is located within title 10 does not establish that section 350 has no applicability outside the FA program. Thus, to limit section 350 (1) (a)'s applicability to the FA program merely because it is located within title 10 would elevate form over substance, particularly when section 350 (1) (a) expressly applies to families with minor children.
Defendants argue that, because the Legislature authorized the State to provide supplemental shelter allowances for time-limited families, it must have meant for the adequacy requirement in section 350 not to apply, because otherwise there would be no need for the Legislature to provide for extra funding in the budget. However, it could just as easily be said that the Legislature authorized the appropriations precisely because it meant to continue section 350's mandate. By stepping in to ensure that funds are available to provide for adequate allowances for time-limited families, the Legislature demonstrated the continuing applicability of the adequacy requirement for those families. In light of this court's determination, there is no need to address the constitutional arguments plaintiffs have raised.

Plaintiffs' motions to intervene are granted. CPLR 1013 permits any person to intervene in an action when that "person's claim or defense and the main action have a common question of law or fact." The issue central to plaintiffs' case is that the shelter allowance bears no reasonable relation to the costs of housing in New York City. This is also the central issue in the main action.
The State makes a number of arguments in opposition to plaintiffs' application to intervene. The first is that plaintiffs' motion to intervene is untimely. Although this case certainly has a long history, HRA did not deny Ms. Cuevas' application until September of 2002. OTDA denied the application in October 2002. Thus, plaintiffs could not have brought these motions to intervene any earlier. The State also argues that because plaintiffs are SNA, their suit lacks commonality with the main action that concerned only the ADC and later the FA. However, as discussed above, the central issue in both suits is the applicability of the adequacy requirement from section 350 to those statutes and it would not serve judicial economy to require plaintiffs to start another action on precisely this issue. The State also makes the naked assertion that it would be "grossly prejudiced" should this court grant intervention. However, this court fails to see the prejudice particularly when not granting intervention would only result in the State defending itself in an entirely new action.

To demonstrate entitlement to injunctive relief, plaintiffs must show (1) a likelihood of success on the merits; (2) that they would suffer irreparable harm were this court not to grant an injunction; and (3) that the balance of the equities favors plaintiffs. As stated earlier, plaintiffs have demonstrated a likelihood of success on the issue that they have a right to adequate shelter allowances. If this court does not grant a preliminary injunction, plaintiffs will suffer irreparable harm in the truest sense they and their young children will face eviction from their homes and likely homelessness. Obviously then, the balance of the equities favors plaintiffs over the State that will suffer only monetary loss should the injunction prove improvident.
Accordingly, the court ordered that defendants to pay plaintiffs-intervenors' attorneys' fees pursuant to this court's prior decision and order dated August 6, 2002. The court has considered defendants' other contentions and finds them without merit.

If you have family issues such as support or custody, seek the help of a Bronx Family Attorney and Bronx Child Support Attorney at Stephen Bilkis and Associates in order to know the reliefs available to your case.

Court Decides Custody Battle

March 30, 2014,

Two analogous cases were brought before the court for determination.
In the first case, the mother appeals from an order of the Family Court, Kings County in this custody proceeding pursuant to Family Court Act article 6 dated 2 April 1993, for after a hearing was conducted, the court awarded permanent custody of the parties' four-year-old daughter to the father.

A New York Family Lawyer said the court orders the reversal of the order insofar as appealed from, on the law and the facts, without costs or disbursements. The mother is awarded permanent custody of the parties' four-year-old daughter, and the matter is remitted to the Family Court, Kings County, for a determination of a visitation schedule for the father.

A New York Custody Lawyer said on 16 April 1990, the parties' judgment of divorce awarded custody of their two daughters to the mother. Custody was awarded to the mother based primarily on the older daughter's claim that her mother left the two daughters home alone on the night of 20 March 1992, which is not fully substantiated or resolved in the record. The father petitioned for temporary custody of the daughters. After a hearing on the issue of temporary custody, the court appointed a psychologist, recognized for her expertise in custody and visitation matters, to conduct an investigation and prepare a report on the question of the permanent custody of the children. In the interim, the father was given temporary custody, with visitation rights to the mother.

A Nassau County Family Lawyer said that after an intensive investigation, the psychologist recommended that the court split the custody arrangements between the parties, permitting the older daughter to remain with her father, as she desired. In spite of the sisters' close relationship and a preference for keeping the siblings together, in a thorough and carefully reasoned 22-page report, the psychologist concluded that the mother is more fitted to be a custodian for the younger daughter. She explained, among other things, that the four-year-old had closely bonded with her mother, with whom she had spent the first three and one-half years of her life. Moreover, the mother allowed the daughter to freely express and develop her emotional and intellectual capacities, whereas the father was more didactic and demanded compliance, even if indirectly.
The law recognizes that it is often desirable and in a child’s best interests to continue to live with siblings. As a precedent, Eschbach v Eschbach emphasized that which is an important factor for the court to consider, it is not determinative of the issue of custody. A split custody determination has also been recognized as proper when, as here, the best interests of each child would be served by granting custody of each child to a different parent as was held in the cases of Klat v Klat, Matter of Bilodeau v Bilodeau and Wurm v Wurm.

In making its determination, the court placed undue reliance on the perceptions and desires of the older daughter, which then became the basis for awarding custody to the father on the principle that it is desirable to keep siblings together. Moreover, the court ignored other factors cited by the courts that are particularly pertinent to this case, i.e., the child's original placement and each parent's ability to provide for the child’s emotional and intellectual needs. These principles are based on cases of Eschbach v Eschbach, Matter of Nera v Uhlar, Matter of Lobo and Klat v Klat.

A Staten Island Family Lawyer said that accordingly, the court's determination lacks a substantial basis in the record and is reversed.

In the second case, Attorney A, the attorney for the child, appeals from an order of the Family Court, Kings County, in this custody and visitation proceeding pursuant to Family Court Act article 6, dated 30 November 2010 which granted the petitioner father’s motion to dismiss the maternal grandmother’s cross petition for custody of the subject child and granted the father’s petition for custody of the child subject of this case.

The court dismisses the appeal as academic without costs or disbursements.
As was held in the case of Matter of Merando v Vantassel, the child who is the subject of this case is now over 18 years of age and is no longer subject to the order appealed from and the appeal must be dismissed as academic.
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Court Decides Case Dealing with Family Court Act

March 29, 2014,

The facts of this case constitute good cause or special circumstances justifying the 12-day extension of the time constraints of Family Court Act § 350.1(1). A New York Family Lawyer said that, on January 10, 1992, the 13-year-old appellant was arrested. He was charged with acts which, if committed by an adult, would have constituted the crimes of attempted grand larceny in the third degree, attempted grand larceny in the fourth degree, criminal mischief in the third degree, and criminal mischief in the fourth degree. He was remanded to a secure facility on January 13, based upon a history of absconding from Children's Village at Dobbs Ferry, a non-secure setting, several times in the prior several months, and upon his posing a serious risk of not appearing in court on the return date. At a fact-finding hearing on January 16, 1992, he admitted to having committed acts constituting two counts of criminal mischief in the fourth degree.

A New York Custody Lawyer said that, on that date, his Law Guardian requested that the dispositional hearing be adjourned from Westchester to Brooklyn, as that was the appellant's last county of residence. That application was joined in by the Westchester County Attorney, and the matter was transferred to Kings County for a dispositional hearing. The fact-finding order was entered on January 28, 1992.

A Westchester County Family Lawyer said that, the appellant appeared in the Family Court, Kings County, seven days later, on February 4, and was assigned a new Law Guardian. On that date, the presentment agency asked for continued remand for purposes of conducting a probation investigation and preparing a report, a mental health study, and an exploration of placement, and in order to ascertain the whereabouts of his parents or guardian and his status at Children's Village at Dobbs Ferry. Over the Law Guardian's objection, the court adjourned the matter for those purposes, and continued the remand because no parent or guardian was present in court, as well as because there was substantial probability that the appellant would not appear on the return date. The matter was adjourned to February 10, 1992, for disposition. Family Court Act § 350.1(1) provides that in cases such as this, the dispositional hearing shall commence 10 days after entry of the fact-finding order. That statutory 10-day period expired on February 7, 1992.

A Suffolk County Family Lawyer said that, the Law Guardian moved to dismiss the petition pursuant to Family Court Act § 350.1. That motion was denied on February 10. At that time, the court noted that it had received a probation and mental health report, but that the probation department required an adjournment in order to complete the exploration of placement alternatives. The court granted the adjournment, finding special circumstances, and adjourned the case to February 19, 1992.

A Kings Child Custody Lawyer said that, by writ of habeas corpus allowed on February 13, 1992, the Law Guardian sought the release of the appellant in the Supreme Court. The Supreme Court, Kings County, granted the writ on February 14, 1992, and ordered the appellant released, finding that the time period consumed during the transfer of the child from Westchester County to Brooklyn was excessive.

On February 19, the Family Court noted that the matter was ready for a dispositional hearing, since it had received the placement report. The Law Guardian again moved to dismiss the petition, asserting a violation of the appellant's rights to a speedy disposition pursuant to Family Court Act § 350.1, but the court again denied the application, reiterating the existence of special circumstances. At this juncture the Law Guardian requested an adjournment of the dispositional hearing for two weeks in order to allow his own social worker to conduct further explorations of placement, and, in fact, subsequently requested a second adjournment. On March 25, 1992, the appellant waived his right to a dispositional hearing and consented to placement with the Division for Youth for up to 12 months, as he had been rejected by all other facilities.

The issue in this case is whether good cause and special circumstances existed, justifying the adjournments granted on February 4, 1992, and February 10, which extended the statutory time limit for the dispositional hearing by 12 days.

The court said that, pursuant to Family Court Act § 350.1(1), "if the appellant is detained and has not been found to have committed a designated felony act as in this case the dispositional hearing shall commence not more than ten days after the entry of a fact finding order". The court may in its discretion adjourn a dispositional hearing for up to 10 days for "good cause shown". The court must state the reasons for the adjournment on the record, and successive adjournments are not permitted unless "special circumstances" are shown. On February 7, the 10-day period commencing January 28 expired. The court was prepared to commence the dispositional hearing on February 19.

The issue of whether inter-county transfers constitute "good cause" or "special circumstances" justifying adjournments for purpose of speedy disposition considerations has not previously been addressed by our appellate courts. Family Court Act § 302.3(4), which provides for such inter-county transfers, clearly fails to provide for their consequences.

The court holds that the facts of this case satisfy the good cause or special circumstances test. The transfer in this case consumed only seven days, or five working days--a period which is reasonable given the well-known, over-burdened, and understaffed realities of Family Courts and their related agencies. Also relevant is the fact that the application for the transfer was made by the appellant's Law Guardian for the benefit of the appellant and consented to for that purpose by the presentment agency and the court. Unless inter-county transfers such as the one in this case are regarded as good cause or special circumstances, Family Court judges might be well advised to grant such transfer applications only on condition that resulting speedy disposition violations are waived.

At the appellant's first appearance on February 4, 1992, the Family Court, Kings County, had no alternative but to grant an adjournment in order to comply with the statutory mandate that the court assign a new Law Guardian and order a probation investigation. In addition, since the statute requires that probation reports and diagnostic assessments be submitted to the court at least five days before the dispositional hearing is commenced.

The second adjournment was granted on February 10; three days after the prescribed statutory time would have run. It was granted in order to permit the probation department to complete its exploration of placement alternatives for the appellant. The exploration of placement report noted that seven placement alternatives had been considered and rejected, two on the ground that the juvenile required a more structured setting. This unsuccessful effort to find an appropriate placement took 15 days. The fact that it required a second adjournment, extending the statutory limit by 12 days, constitutes special circumstances, given any reasonable interpretation of [196 A.D.2d 30] the statute. Pursuant to Family Court Act § 352.1(1), it is the court's responsibility to determine whether a juvenile requires supervision, treatment, or confinement, and in so doing, the court is required to order the least restrictive disposition consistent with the "needs and best interests of the juvenile as well as the need for protection of the community". These are the explicitly stated purposes of the juvenile justice system. Clearly, the avowed purpose of Family Court detention is not punishment but rehabilitation of the juvenile for his or her sake and that of the community. For this purpose, the Legislature provided the Family Court with auxiliary services to conduct a probation investigation and diagnostic assessments. Therefore, an inflexible application of the 10-day limit is inconsistent with the purposes of the statute. Nor does the desired result require judicial rewriting of the statute, since the Legislature provided for adjournments for good cause and special circumstances.

This 13-year-old neglected child was an orphan who had demonstrated prior difficulties in a non-secure setting from which he absconded on several occasions, and who had no relative sufficiently concerned for his welfare to appear at either the Westchester or Brooklyn hearings. To him the importance of placement in an appropriate facility was critical.

A construction of the statute making compliance literally impossible for the presentment agency will result in the dismissal of petitions, even in cases such as the one before us, where the guilt of the appellant is proven by his or her own admission, depriving the juvenile of assistance and the community of protection, and demonstrating to both the abysmal failure of the justice system.
Mindful though we are of the strict construction that the Court of Appeals has afforded to the time constraints of the Family Court Act, we find that prior authority does not compel dismissal of this petition.

In one case, the Court of Appeals ordered the petition dismissed where there was a 218-day delay of the fact-finding hearing resulting from the court's failure to hold a suppression hearing, and from delays and confusion caused by the substitution of a new Judge. Here, the delay was 12 days and the facts resulting in the adjournment are of an entirely different nature, deriving from neither court delay nor administrative confusion. In another case, the petitions were dismissed because the respondents failed to appear for fact-finding hearings and the presentment agency failed to make applications for adjournments. No such failure on the part of the agency existed herein. This court ordered the petition dismissed where the Law Guardian failed to appear for a dispositional hearing. The Law Guardian caused no delay in this case. In all of the above-noted cases, the facts and circumstances are clearly distinguishable from those here, where the agency consistently acted diligently in attempting to comply with the time constraints of the statute, and the court moved the case as expeditiously as possible, noting its reasons for granting the adjournments on the record. Within the confines of the statute as it presently exists, no more could have been done. Recognizing the express purposes and mandates of the Family Court Act, reason dictates that good cause and special circumstances justified this 12-day extension of the statutory time for the appellant's dispositional hearing.
Accordingly, the court held that the order appealed from is affirmed.

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Court Decides Two Cases Involving Family Court Act 651 (b)

March 28, 2014,

Pursuant to the Family Court Act § 651(b) and Domestic Relations Law § 72, two petitions are now before the court.

A New York Family Lawyer said the first petition filed on 5 December 2008 by A (birth father) seeks custody of and/or visitation with the child B (D.O.B. 04/01/2004).

The second petition filed on 5 December 2008 by C, mother of B, seeks custody of and/or visitation with the child, C.

For reasons set forth below, however, the Court grants the motion filed by the respondents, Mr. and Mrs. Anonymous, and dismisses each of these petitions.
On 3 April 2004, the child B was validly surrendered by her birth mother to Family Focus Adoption Services, Inc., for the purposes of adoption. On 3 December 2004, the pre-adoptive parents, the respondents, Mr. and Mrs. Anonymous, filed a petition for adoption of C in Queens County Family Court. On 30 June 2006, the Queens County Family Court dismissed the adoption petition, finding that the birth father's consent to the adoption was necessary, and the birth mother's surrender of the child was invalid. That decision was upheld by the Appellate Division, Second Department.

On 3 June 2008, the New York State Court of Appeals reversed the decision of the Queens County Family Court, ruling that A was a "notice" father, not a "consent" father, with limited legal rights, and that the birth mother's surrender of the child was valid.

A New York Child Custody Lawyer said the Court of Appeals reinstated the adoption petition, remitting the matter to the Queens Family Court for further proceedings. The petitioner, A, filed for certiorari in the United States Supreme Court requesting the reversal of the decision of the New York State Court of Appeals. On 1 December 2008, however, his writ of certiorari was denied.

A Bronx Family Lawyer said the provisions of DRL § 111-a afforded A the right to notice of the adoption proceeding and an opportunity to be heard as to the best interests of the child. On 22 December 2008, this Court held a hearing pursuant to DRL § 111-a, in which A testified, called his mother, C. as a witness, and was provided the opportunity to present evidence relevant to the best interests of the child. On 22 December 2008 and on 3 January 2009, counsel for A submitted two briefs on his behalf. At that time, the Court held in abeyance a decision on the instant custody/visitation petitions.

On 2 February 2009, the Court determined that adoption of B by the respondents, Mr. and Mrs. Anonymous, was in the best interests of the child. In making that determination, the Court carefully considered the testimony of the birth father, A and his mother, B, the documentary evidence submitted by the pre-adoptive parents in the adoption proceeding, and the two briefs submitted by counsel for A. In spite of numerous attempts by his counsel to focus him on the "best interests" of C, A barely acknowledged the child's interests as separate from his own and never addressed them. At no point did A focus on the fact that C has been with the pre-adoptive parents since birth, almost five years. He never discussed the impact on her if she were to be removed from the only home she has ever known, one in which she is clearly loved and nurtured. Nor did he address the fact that she has had no contact with him for more than two years, and had seen him only a limited number of times prior to that, and only under the supervision of a mental health professional and in the presence of her pre-adoptive mother. A testified that he had visited with B about "50 percent" of the time during the two to three-year period that the court ordered supervised visitation at no cost to him. After the court ordered that A pay the supervisor's fees, he did not visit at all. Further, he exhibited no sensitivity to or understanding of C, nor did he ever discuss or indicate any interest in her needs, her strengths and weaknesses, her personality or her life. He did not state what inquiries he had made, if any, as to her emotional and intellectual development. He never addressed his interest in or his ability to meet B's physical, emotional and psychological needs, nor did he state any efforts he would make to do so.

C, the mother, also testified and revealed that they have only visited B on three occasions in 2007, said she believed that it was unlikely that B would recognize her or know who she was and did not state that she sent any cards, letters, gifts, to the child, or made any independent effort to have contact with or reach out to C.

C had little to add other than to say that it was "unfair" to her son if the court proceeded with the adoption. The court found that the pre-adoptive parents, Mr. and Mrs. Anonymous, created a loving, stimulating and supportive environment and encouraged B to grow, learn, and develop. She has been cherished and loved by Mr. and Mrs. Anonymous, as well as their extended family. They have protected B from the stresses of four years of litigation, and responded to and cared for her with great sensitivity, thoughtfulness and caring. A final order of adoption of B by Mr. and Mrs. Anonymous was issued by this Court on 9 February 2009.

After careful examination and consideration, the court dismisses the petitions of A and C.
In Matter of Lynda D v Stacy C, it was held that the information before the court enables it to undertake a comprehensive independent review' of a custody or visitation issue, an evidentiary hearing is not required. The court has carefully examined the record of the case and submits to this precedent. The court may further decide the matter upon pleadings, papers and admissions to the extent that no triable issues of facts are raised.

The court finds that the record before it has ample information to determine the threshold questions whether either petitioner can establish "extraordinary circumstances" as to the issue of custody, and whether either petitioner has "standing" to pursue his/her petition for visitation. The record contains information that is more than sufficient to afford a full, independent and comprehensive review of all relevant facts and circumstances as to those issues. Accordingly, this Court renders decisions on the instant custody/visitation petitions, filed by A and C, respectively, based on the record before it, and grants respondent adoptive parents' motion to dismiss both petitions based on lack of standing.
The petition filed by A asks this Court to award him custody of and/or visitation with B, whose adoption is now final. This Court finds that A lacks standing to pursue the custody/visitation petition. Upon the finalization of B’s adoption, A’s parental rights ceased, and he has no legal rights to the custody of or visitation with the adopted child B. DRL § 117 (1) (a) delineates the effect of the adoption:

A Bronx Custody Lawyer said that after the making of an order of adoption the birth parents of the adoptive child shall be relieved of all parental duties toward and of all responsibilities for and shall have no rights over such adoptive child or to his property by descent or succession, except as hereinafter stated.

Here, A seeks an award of custody of B or, as an alternative, court-ordered "liberal and unsupervised visitation with the child because there is no reason why the contacts with the birth family should be ended here. However, the Court finds many compelling reasons to deny the relief requested in his petition. The Court's grant of A’s request would violate public policy and contravene judicial precedent and the principles of preserving the finality of an adoption, protecting the adoptive relationship from uncertainty and disruption, and promoting stability and permanence in the adoptive relationship.

The New York's Court of Appeals states that, although adoptive parents are free, at their election, to permit contacts between the adopted child and the child’s biological parent, to judicially require such contacts arguably may be seen as threatening the integrity of the adoptive family unit.

Finally, A asserts that DRL § 72, which authorizes a grandparent or grandparents to seek custody/visitation rights with a grandchild, also applies to him, as "a birth father whose parental rights have been terminated. A's argument that DRL § 72 applies to him as a father whose rights are terminated is a spurious claim at best.

Moreover, A is not a father "whose parental rights have been terminated." The Court of Appeals made clear in its decision in this case that A is a "notice father," who has the limited right to notice of the adoption proceeding for the "sole purpose" of presenting "evidence to the court relevant to the best interests of the child(DRL § 111-a [3]).

A is not a "consent father" with the legal right to withhold consent to B’s adoption (DRL § 111). Moreover, A’s limited legal rights as a "notice father" were satisfied at the 22 December 2008 hearing before this Court pursuant to DRL § 111-a. Even if A qualified as a consent father whose parental rights were terminated involuntarily, New York's appellate courts have ruled uniformly that the family courts do not have authority to order contact between the adopted child and a birth parent whose rights have been terminated.

New York State's legislature has created one exception to this general bar against court-ordered post adoption contact in termination cases; however, it applies only to parents who voluntarily have surrendered their rights to the child. Only these parents may "reserve the right to post adoption visitation and communication. In the instant case, the birth mother of B was the consent parent with full legal rights, who surrendered the child for adoption voluntarily. A’s reliance now on DRL § 72 in support of the instant custody/ visitation petition is entirely without merit.
The court finds that the adoption of B has relieved A of all parental rights and responsibilities. He is now redounded to the status of a legal stranger.

C, on the other hand, lacks standing to obtain custody of the child pursuant to FCA Article 6 or DRL § 72 (2).

C urges this Court to apply the standard of the "best interests of the child and award her custody of B pursuant to the provisions of DRL § 72 or FCA Article 6.

Pursuant to Article 6 and as emphasized in Matter of Peter, a grandparent has no "pre-emptive right" to custody of the child. Neither does she have a special statutory right to a "best interests" hearing. The grandparent first must prove the existence of "extraordinary circumstances- the relinquishment of rights by the legal parent, here the adoptive parents, "due to surrender, abandonment, persistent neglect, unfitness, or similar extraordinary circumstances."
One of the most crucial elements of a healthy childhood is the availability of a stable home in which each family member has a secure and definite place. In addition to the stake of the adopted child, the adoptive family is unquestionably adversely affected by any lingering uncertainty about the permanence of adoption. Lastly, society has an independent interest in the finality of adoptions, since the adoptive relationship implicates many legal rights of the parties, including the right to inherit and the right to receive certain governmental benefits.

Accordingly, the standing requirements of DRL § 72 must be applied strictly, particularly in the context of an adoption by non-family members, where no grandparent-grandchild relationship exists, where the grandparent has failed to make attempts to foster a relationship, despite opportunities to do so, and where the adoptive parents object to the grandparent's proposed visitations as a serious hindrance to the integrity of their family unit and the finality of the child's adoption, and as detrimental to the best interests of the child.
In the instant case, continuing involvement in protracted litigation, which in this case has extended throughout the entire life of this five year old child, poses imminent risk to the child’s right to a stable, permanent family life where her physical, psychological, and social well-being are secure and can continue to be nourished and developed. Clearly, the quest for court-ordered intervention into the life of this new adoptive family hinders the integrity of this adoptive family unit and is contrary to the best interests of the child.

In review of all relevant facts and circumstances, in particular, the lack of any relationship whatsoever between C. and the adopted child, and the sound objections of the adoptive parents to the proposed visitation on the grounds of harm to the integrity of their adoptive family unit and the finality of the adoption, this Court finds no basis in law or equity to confer standing upon C to seek court-ordered visitation with the adopted child B.

The court, thereby, grants the motion filed by the adoptive parents and dismisses the custody/visitation petition filed by C, and the custody/visitation petition, filed by A and denies the applications in their entirety.

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Court Decides Custody Case Where Child was Taken Into State Custody

March 27, 2014,

A New York Family Lawyer was born out of wedlock on 29 August 1977. Soon after her birth, she was placed voluntarily by her mother with the Department of Social Services for the City of New York. The department, in turn, authorized its agent, the Orphan Asylum Society of the City of Brooklyn, commonly known as the Brookwood Child Care Agency, to supervise the child's care. A was placed in a foster home on 29 September 1977 but on 7 November 1977, A’s natural father, B., telephoned the Brookwood agency. He acknowledged paternity and requested a meeting with agency officials, which was held two weeks later. At that time, B expressed his desire to visit and financially support the child.

A New York Custody Lawyer said the representatives of Brookwood informed B that the mother, C, had adamantly refused to permit access to the child. B was instructed that, until such time as he formally established paternity, the agency would be bound by the mother's instructions and he would not be allowed to see A. Brookwood provided B with the name and the address of the Kings County Family Court.

B persistently contacted Brookwood inquiring about A’s welfare, made a couple of visits and was informed that the matter of his paternity could go no further unless A's mother participated in the process. The mother's failure to co-operate was cited by B in explaining why he had been unable to establish paternity.

A Westchester County Family Lawyer said that during this period, Brookwood's efforts centered on working with A's mother toward reuniting the two. The mother's disinterest and her inability to appropriately care for the child or plan for the child's future soon became apparent to Brookwood. Consequently, it was determined in early 1978 that the agency plan would be to seek a surrender of A for adoption and to place her in a preadoptive home. In the event that a voluntary surrender by the natural parents was not forthcoming, Brookwood decided that it would initiate a proceeding to terminate the rights of the mother and father.

A Suffolk County Family Lawyer said in October 1978, A, now 13 months old was placed in her current foster home. Her foster parents were informed that B’s whereabouts were unknown and that A would be available for adoption in 6 months. C, however had a change of heart. This time, she wanted B to have access to the child. A biweekly visitation schedule was established by which B, his mother, and his sister would visit A at Brookwood's offices. For the next year and a half, until the instant proceeding was brought, B and his family regularly attended the scheduled visits.
In January, 1979, B came forward with a plan to take custody of A. B, an employee of the Post Office, had adequate income to support himself and A. At that time, however, he lived at a YMCA. B proposed to the Brookwood caseworker that he would move in with his mother who would take care of the child until he returned from work each day. B reiterated this plan to the caseworker in April, 1979. He was able to formally establish paternity at this time suggesting a new plan to find his own apartment and put the child in daycare when he was working.

In May 1980, the instant proceeding was commenced. Brookwood brought a petition in Family Court against both of the natural parents for a determination that A was a permanently neglected child, that both parent's rights be terminated, and that A be made available for adoption.
Evidence relating to the allegations against the natural mother was presented at many scheduled hearings held during the latter part of 1980 and the early months of 1981. At the close of the fact-finding hearing, the Family Court found that A had been permanently neglected by her mother. That determination was not appealed to the Appellate Division and is not at issue in this appeal.

The allegations against the natural father were the subject of hearings held on February 18-19, 1981. The essence of the agency's case against him, in the words of Brookwood's attorney, was the failure to plan. Not lack of visitation, but failure to plan. The agency argued that it had, under the circumstances, made a reasonable effort in assisting B. It was noted that the agency repeatedly informed B that he would have to establish paternity and that it had provided B with the name and address of the court in which he could receive an order of filiation. Also cited were two incidents, one in April, 1979, when the agency had offered B counseling, and a second in February, 1980, when B had been offered assistance in finding an apartment. Relying on these efforts and the assertion that B was a well-intentioned and intelligent individual, the agency argued that it nevertheless took B 18 months, from the time of A’s birth, to establish paternity. In the agency's view, this constituted evidence of a failure to plan for A's future sufficient to give rise to a determination of permanent neglect.

At the fact-finding hearing, the guardian ad litem for A argued that B’s parental rights should not be terminated. It was noted that, promptly after A's birth, B had informed Brookwood that he was the child's father and had since undertaken his own efforts to establish paternity. The guardian also asserted that a finding of a failure to plan should not rest on B's failure to establish paternity. To this end, it was pointed out that the "morass of coming to court and getting orders of filiation, or getting summons, is something that many attorneys have difficulty with, let alone a lay person."
The Family Court dismissed the petition against B the reasons being that Brookwood failed to exercise diligent efforts on behalf of uniting A and B. It found that with regard to B, Brookwood did not assess him and his family as a parent and family to whom A could be released.
A cross motion for custody had been made by B, and the court ordered that, in light of this motion and the fact that the petition against A's mother had been sustained and her parental rights had been terminated, a dispositional hearing and custody hearing should be held simultaneously. The foster parents were granted their motion to intervene in the proceedings.

Hearings were conducted over the course of the year. A’s custody was the issue and the court is concerned with her well- being. Experts were called to witness and all concurred that the relationship between A and B and B’s family had deteriorated. They relate that A is suffering from separation anxiety disorder because she has already built a strong attachment to her foster parents. B’s fitness to assume custody was also questioned.
B was granted custody but it was not immediate due to the child’s condition. A was placed in the continuing custody of the Department of Social Services that was thereby instructed by the court to effectuate the unification of A and B. The department submitted to the court the plan to unify A and B by 25 September 1982.

The foster parents appealed and the Appellate Division modified it by holding that the child had been permanently neglected by both of her natural parents. The court determined that Brookwood had satisfied its statutory duty to exercise diligent efforts, finding that A had not been placed in her preadoptive home until she had been in the agency's custody for more than one year. Under the law, a permanently neglected child shall mean a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of more than one year following the date that child came into the care of the agency, substantially and continuously or repeatedly to remain contact with or plan for the future of the child, although physically of financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interest of the child.

B appealed.

The record indicates that Brookwood proceeded with utter indifference to B’s rights. Brookwood failed to satisfy its statutory duty. This, in itself, precludes a finding of permanent neglect.
While the foster parents suggest that in view of B’s admission of drug and alcohol abuse, Brookwood was not obligated to make diligent efforts and would have been contrary to A’s best interest, this argument has no merit. Although an agency need not exercise diligent efforts when the efforts would be against the best interest of the child, Brookwood did not rely on this exception in its petition or at the fact-finding hearing. Indeed, the record indicates that, prior to the dispositional hearings, Brookwood had made no effort to learn of B’s problems and, at the fact-finding hearing, the agency argued that it had exercised diligent efforts. Moreover, it is doubtful that suspected drug abuse by a parent would serve to entirely relieve an agency of its duty to exercise diligent efforts. This is precisely the type of problem that child-care agencies are designed to help ameliorate. The exception is not complete, and such an agency would be justified in relying on the exception only to the extent that, under the circumstances, a particular effort would be demonstrably contrary to the child’s best interest.

In other words, the petitioning agency here presented nothing to establish that it had fulfilled its duty with respect to the subject child’s natural father. Consequently, the Family Court properly dismissed the petition insofar as it alleged that the child had been permanently neglected by her father.

When a child-care agency has custody of a child and brings a proceeding to terminate parental rights on the ground of permanent neglect, it must affirmatively plead in detail and prove by clear and convincing evidence that it has fulfilled its statutory duty to exercise diligent efforts to strengthen the parent-child relationship and to reunite the family. Only when this duty has been deemed satisfied may a court consider and determine whether the parent has fulfilled his or her duties to maintain contact with and plan for the future of the child.

Once a child has been voluntarily placed with an authorized child-care agency, and is under foster care, the Family Court is vested with continuing jurisdiction over the child until there has been a final disposition of custody. A decision by that court to maintain the status quo or to return the child to his or her natural parent requires consideration of the child’s best interest. Thus, in view of the court's decision that A was improperly held to be permanently neglected by her natural father, it is necessary to remit the matter to the Family Court for a custody determination in A’s best interest.

The court has had the occasion to comment in a similar context that "it is doubtful whether it could be found to be in the child’s best interest to deny her parent's persistent demands for custody simply because it took so long for her to obtain it legally. The court does not disavow that principle by remitting the matter to the Family Court. Rather, in view of the evidence offered concerning A’s emotional well-being and unanswered questions concerning B’s problems with drugs, further review is both desirable and required. It may be that immediate transfer of custody would be manifestly improvident and that an indeterminate period of continued custody by A’s foster parents is required. Nonetheless, this should be left to the sound discretion of the Family Court. However, the court must add that in the event A’s custody is continued with her foster parents, B, as in the case of all parents whose children have been placed in the foster care system, is entitled to affirmative, repeated, and meaningful assistance in gaining custody of his daughter, with supervision of the agency's efforts by the Family Court.

Accordingly, the order of the Appellate Division is reversed, without costs, and the matter is remitted to the Family Court of Kings County for further proceedings in accordance with the opinion.

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Court Rules on Custody Battle

March 26, 2014,

A New York Family Lawyer said in this Family case, in related child custody proceedings pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Kings County, as, without a hearing, awarded custody of the parties' children to the father.

According to a New York Child Custody Lawyer, the Family Court entered a finding of child neglect against the mother pursuant to article 10 of the Family Court Act upon the mother's admission, at a fact-finding hearing, to allegations that she tested positive for marijuana, obtained Xanax from a neighbor, and used both Xanax and marijuana on a regular basis. Additionally, the Family Court, conducted a dispositional hearing, and was concluded thereafter.

At that hearing, evidence was adduced that supported a finding of the mother's continued drug use, and additional evidence demonstrated the mother's history of mental health issues, inappropriate conduct during visitation, and inappropriate conduct in making, or having her daughter make, false allegations against the father.

Further, a Queens Family Lawyer said at the hearing, the caseworker for the Children's Services recommended that the children be released to the custody of the father. Moreover, a psychologist, who conducted a mental health examination, opined that the mother was in need of additional services prior to reunification. In an order of disposition, the Family Court, inter alia, released the subject children to the care of the father under the supervision of the child services for a period of six months. Subsequently, the Family Court, awarded custody to the father pursuant to article 6 of the Family Court Act without conducting a hearing.

A Queens Child Custody Lawyer said that contrary to the mother's contentions, the Family Court possessed adequate relevant information to enable it to make an informed decision as to the best interests of the children without conducting a hearing, and the record supports a finding that it was in the children's best interests for custody to be awarded to the father.

Thus, the Court held that the custody should be awarded to the father of the subject child.
In another case, In related custody and visitation proceedings pursuant to Family Court Act article 6 and a related family offense proceeding pursuant to Family Court Act article 8, the mother appeals from (1) a decision of the Supreme Court, Kings County, made after a hearing, and (2) an order of the same court, which, upon the decision, awarded sole custody of the child to the father.

In adjudicating custody issues, the paramount concern is the best interests of the child. Since the Supreme Court's determination in a custody dispute is based upon a first-hand assessment of the parties, their credibility, character, and temperament, it is generally accorded great deference on appeal and should not be disturbed unless it lacks a sound and substantial basis in the record.

Contrary to the mother's contentions, the Supreme Court properly considered the totality of the circumstances in determining that the best interests of the child would be served by awarding custody to the father, with liberal visitation to her. That determination is supported by the record, including the testimony of the parties and the recommendation of the court-appointed forensic evaluator. Since the Supreme Court's determination has a sound and substantial basis in the record,

it will not be disturbed.

The Court in dismissing the case likewise held that the mother's remaining contentions are without merit. Particularly, It ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision and it is further ORDERED that the order is affirmed, without costs or disbursements.

A child of tender age should be taken care of with utmost care. Thus, the child’s best interest should be the paramount consideration in case of child custody or visitation cases. Here in Stephen Bilkis and associates, we have lawyers who specialize in this field. Our Kings County Child Custody attorneys will render their advice to you as to the availability of the remedies sanctioned by law. For other family matter concerns, don’t hesitate to consult also our Kings County Family lawyers. Contact us now and be adviced.