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A Kings County Child Visitation Lawyer said that a notice of Motion/Order to Show Cause/ Petition/Cross Motion and This court is called upon to determine (1) whether the attorney for the defendant’s application to be relieved as attorney of record should be granted; (2) if the defendant’s applications brought pro se while still represented by counsel are properly before the court; (3) whether or not the defendant is entitled to a 30 day stay of all proceedings in the event counsel is relieved pursuant to CPLR 321(c); (4) whether or not the defendant is entitled to a second court appointed counsel pursuant to Judiciary Law section 35(8)(b) on the issues of child custody, visitation and an order of protection; (5) whether or not the defendant should have the benefit of a court assigned interpreter; (6) the sua sponte sealing of photographs of the child’s genitalia and buttocks which were annexed exhibits to defendant’s order to show cause.

The defendant is presently represented by an attorney of her own choosing. Defendant’s counsel moved by order to show caused dated November 5, 2010, to be relieved. The counsel seeks to be relieved as the attorney of record based upon an irretrievable breakdown in the attorney client relationship. The defendant submits in her most recent application disparaging statements about him and his representation of her. In open court, on November 17, 2010, defendant stated she wished to discharge his attorney and asked for the appointment of counsel pursuant to Judiciary Law section 35(8)(b).

The said counsel is defendant’s third attorney of record. Previously, defendant was represented by pro bono counsel, a New York City law firm. On March 10, 2010, a consent to change attorney was filed and the defendant was substituted as attorney pro se. On May 5, 2010, an attorney was appointed by the court as the attorney for the defendant pursuant to the Judiciary Law on the issues of child custody, visitation and an order of protection. Although not initially disclosed to the court by defendant, this attorney simultaneously represented defendant in Family Court. On August 10, 2010, defendant was again substituted pro se for this attorney on consent. The attorney had moved by order to show cause, dated August 13, 2010, to be relieved. That application was rendered moot based upon the pro se substitution and the fact that defendant already retained private counsel to wit: the counsel unbeknownst to the court assigned attorney. After having discharged the court appointed counsel and hired private counsel, defendant seeks to now have the court appoint her another attorney. The counsel represented the defendant in an all-day temporary custody hearing on October 7, 2010, before this court. The court after the hearing awarded temporary custody of the infant issue to the father. He is the more stable parent, at the present time, for the care of the child. As a result of the hearing the court believes that plaintiff was a victim of domestic violence; on one occasion he sought medical assistance at an emergency room. Apparently, shortly before that hearing, defendant appeared in the Family Court, Queens County, pro se, and obtained an ex parte temporary order of protection against plaintiff. That petition indicated that there were “no prior applications” for an order of protection notwithstanding the present application in this matrimonial action or the two (2) prior Kings County Family Court applications for orders of protection which were withdrawn on the record in open court after consolidation on consent. Upon disclosure to this court of the defendant’s application in Queens County, this court from the bench contacted the Referee from Queens Family Court who indicated she has no knowledge of an existing matrimonial action. This court informed counsel and the parties’ of this on the record in open Court. Upon written application, this court, ex parte, granted consolidation of the Queens Family Court matter and ordered a hearing on November 17, 2010. That hearing was adjourned so the counsel could make the present application to be relieved because of defendant’s alleged actions and alleged failure to cooperate with him. Defendant also brought on two (2) orders to show cause pro se while still being represented by counsel and not informing him of her intent to do so. On November 22, 2010, defendant submitted an application for poor person status and filed a third pro se order to show cause.

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People v. Badalamenti

NY Slip Op 02556

The highest court in New York has held that parents can legally eavesdrop on their children if they believe that it is in their best interests. This ruling by the New York State Supreme Court established an exception to existing wiretapping without consent laws.

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In Re: T.G. a Minor Allegedly Neglected by P.G. – No. NN-20507/15

This matter came to the court on inquest after the respondent failed to appear on three different occasions. The petition alleges that the respondent neglected her child and failed to provide proper guardianship and supervision.

In a child neglect case, the petitioner is required to prove by a preponderance of material and relevant evidence that the subject child’s emotional, physical and mental well-being was impaired (FCA 1046 (b)(1). It must also be proven that the harm to the child was directly caused by the respondent’s failure to provide a minimum degree of care (Nicholson v. Scopetta, 3 NY 3d 357, 368 (2004).

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The Defendant is charged with Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1), and two counts of Public Lewdness, in violation of Penal Law § 245. It is alleged, in sum and substance, that on March 15, 2008, at approximately 2:10 p.m. and 2:40 p.m., in a public men’s room at the Mall, the Defendant “did expose his penis and masturbate his penis with his hand in clear view of the victim, a 13 year old boy.”

A Nassau County family lawyer said that the Defendant was allegedly identified by the boy and held by Mall security until the police arrived following their notification. The Defendant was placed under arrest, at approximately 3:20 p.m. on the date of the alleged incident outside and escorted to a police substation on the Mall’s lower level by two Nassau County Police Officers. At approximately 4:15 p.m., following questioning by a Nassau County Detective, the Defendant signed a three and one-half page statement regarding the alleged events.

The Defendant challenges the admissibility of this statement with a three prong attack. The Defendant alleges that the statement was the result of a custodial interrogation and that he was never advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). In the alternative, the Defendant argues that, even if he was advised of his rights, he was unable to make a knowing, intelligent and voluntary waiver thereof due to the fact that he suffers from an obsessive compulsive disorder (“OCD”) which, combined with the effects the arrest and interrogation procedures had on his condition, prevented him from comprehending these rights. Pursuant to stipulation of the parties, on July 29, 2009, July 30, 2009, August 12, 2009, October 1, 2009 and November 5, 2009 the court conducted a hearing pursuant to People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965) regarding the voluntariness of statements attributed to the Defendant following his arrest on March 15, 2008.

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On August 31, 1992, the couple were in the process of buying a home. The husband’s father, a wealthy and successful entrepreneur, decided to help his son, daughter-in-law, and their young children in moving into the home. The husband’s father arranged a $47,000 transfer to the couple through an entity identified as the retirement plan corporation. There is no evidence before this court on how the money was advanced. There is no check from any bank account evidencing the advance of funds from corporation to the couple. At the time the father-in-law advanced the funds, he had the couple sign a mortgage on the house they were acquiring. The interest rate on the mortgage was one per cent.

For five years, the annual payment was never made. There is no evidence that the father-in-law sought payment of the annual amount from his son or daughter-in-law.

In 1997, the couple wanted to move and needed additional funds to do so. In another generous gesture, the husband’s mother advanced an additional $100,000 to her son and daughter-in-law top facilitate their purchase of a second home. The mother-in-law requested that the couple sign a mortgage for $100,000.

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There are several issues currently pending before the Court in this mid-fact-finding Family Court Act article 10 proceeding. The first issue is whether to grant the motion of respondent father-person legally responsible (hereinafter, “respondent father”) to compel the production of the subject child, Lizmarie B.’s, post-incident hospital records, despite her opposition and refusal to execute a HIPAA release. The second issue is whether to grant the motion of the Administration for Children’s Services (hereinafter, “ACS”) to admit the criminal record of respondent father, over his objection. The third is whether to grant the motion of ACS for reargument or renewal of the Court’s July 28, 2008 order and decision, based on actions of respondent mother that took place “subsequent to when this court was rendering its decision regarding this matter during the summer months of 2008.” The attorney for the two older children supports the motion for reargument or renewal, which is opposed by respondent mother and the attorney for the younger children. For the reasons set forth herein, the first two motions are granted and the third is denied.

Valerie B. (hereinafter “respondent mother”) and Leocadio B. Sr. (hereinafter “respondent father”) are the parents of two of the subject children, Leocadio B. Jr., born January 1, 2000 and Andrea B., born January 1, 1998. The other two children, Lizmarie B., born May 25, 1989 and Jasmine B., born July 9, 1993, are the nieces of the respondent father.1 On November22, 2006, at approximately 1:00 AM, ACS removed the subject children Lizmarie and Jasmine B. from the care of the respondents without a court order pursuant to Family Court Act §1024.

On November 22, 2006, ACS filed petitions against both respondents. The petitions allege that respondent father raped the subject child Lizmarie on November 20, 2006 after watching a pornographic film with her and that he had raped her once before in February 2005. In addition, the petitions allege that respondent mother failed to provide adequate care and supervision for the children Leocadio Jr. and Andrea by allowing respondent father to leave the home with the children after she learned that he had sexually abused Lizmarie. Finally, the petitions allege that Jasmine, Andrea and Leocadio Jr. are derivatively abused and neglected children by virtue of the abuse of Lizmarie.2 On the day the petitions were filed, Hon. Anne Feldman granted the request of ACS for a remand of all of the children. The subject children Leocadio Jr. and Andrea were removed at approximately 9:00 PM, pursuant to the court-ordered remand.

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In this proceeding pursuant to Article 78 of the CPLR, the petitioners, Probation Officers with permanent status in the Nassau County Probation Department, question the authority of the respondent, as the State Administrator of the Judicial Conference of the State of New York to exercise jurisdiction over the examinations for positions in the Probation Department and the reasonableness of the eligibility requirements fixed by him for the promotion examination that was to be conducted on November 18, 1967 for the position of Supervising Probation Officer.

Specifically, petitioners urge: that the Nassau County Probation Department is not a part of the unified court system of the State of New York; that the reduction in eligibility requirements for candidates from those specified in Exhibit B (Nassau County Civil Service Commission notice of examination dated December 15, 1962) to those specified in Exhibit A (announcement for written test on November 18, 1967 of Administrative Board of the Judicial Conference) so that persons with less experience and training would be eligible, would result in placing supervision in the hands of persons who were not qualified, and would increase from 36 to 80 the number of probation officers eligible to take the examination.

Examination of the papers submitted and of the law satisfied the Court that the Administrative Board has jurisdiction over the subject matter and that it was not unreasonable for it, through its administrator, to adopt the requirements for the position as revealed in Exhibit A.

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This is a family case commenced on February 25, 2005 by the filing of a Summons and Complaint in the Supreme Court of Nassau County setting forth two causes of action against the Defendant sounding in breach of contract and an account stated, and a third cause of action against all Defendants seeking to foreclose a mechanics lien filed by the Plaintiff on a real property. The Plaintiff filed a Notice of Pendency with the Nassau County Clerk at the same time.

A Nassau County Family lawyer said that the issue was joined with the Defendants on or about September 26, 2005. None of the other Defendants have appeared or answered herein; and, the Plaintiff advises that a money judgment has been submitted to the Clerk of the Court as to the Defendant. The Plaintiff originally moved for summary judgment on its third cause of action in the Supreme Court of Nassau County.

The Defendants opposed the motion. Following submission of the motion this matter was transferred to the District Court of Nassau County, pursuant to CPLR § 325(d). The papers previously submitted, both for and against the Plaintiff’s motion, have now been submitted to this court.

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In this Article 78 proceeding, it is undisputed that petitioner, who had received a Section 8 rent subsidy, did not submit her annual income certification documents, and that respondent New York City Housing Authority terminated petitioner’s Section 8 rent subsidy. Petitioner then wrote to the agency, asking it “to give her family a chance,” and to “Please inform me & my family what we can do to fix my situation.” Petitioner challenges the agency’s determination denying petitioner’s request.

Respondent Rhea and the New York City Housing Authority (collectively, NYCHA) cross-move to dismiss the Article 78 petition as time-barred. Petitioner opposes the motion. NYCHA argues that petitioner’s request was merely a request to restore her subsidy; petitioner argues that the request sought to reopen her default.

NYCHA must follow certain procedures to terminate Section 8 assistance, which were established in a First Partial Consent Judgment entered into on October 4, 1984 in Williams v. New York City Housing Authority.

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On October 28, 2001, plaintiff’s decedent, LM, fell in his apartment, which was located in the Narragansett Hotel, a residential hotel in New York City. A neighbor heard yelling coming from the apartment and called an ambulance. According to the Ambulance Call Report prepared by the EMS workers, he was found “lying in apt, full of feces.” The report indicated that he had fallen down in his apartment and was, inter alia, having difficulty breathing. It was also noted in the report that he had an elevated heart rate of 132 beats per minute, while in the care of the EMS workers. In addition to the information relating to his medical condition, the Ambulance Call Report contained LM’s address, date of birth and social security number. The Ambulance Call Report also listed JT, a close friend of LM, as his next of kin, and contained Ms. JT’s telephone number.

LM was taken by ambulance to the emergency room at Mount Sinai Hospital at approximately 1:55 p.m. The Ambulance Call Report, prepared by the EMS workers, was received by a staff member at Mount Sinai, who signed the report as the Hospital Receiving Agent. An Emergency Department, Patient Registration Form was prepared, at some point, after LM’s arrival at the hospital, and contained the same pedigree information as the Ambulance Call Report, i.e., address, date of birth and social security number. Mount Sinai’s Patient Registration Form also listed JT as LM’s next of kin, and contained her telephone number. A triage assessment was performed, and the records indicate that, at that time, LM was still experiencing shortness of breath and was noted to, among other things, have an elevated heart rate. The triage records state that LM was disheveled in appearance and full of feces. It appears that no treatment was administered in triage. Notwithstanding, he was given acute priority, and sent to an acute area of the emergency department. It is noted that the triage records also contain LM’s pedigree information.

LM was assessed by Dr. JJB, Jr., an attending physician, in the emergency room at Mount Sinai. He was found to be in respiratory distress, with edema, which is the swelling of the extremities. The emergency room records indicate that LM’s heart rate was a very high 160 beats per minute, at the time. Dr. JJB testified at his deposition that his preliminary diagnosis was congestive heart failure, as a result of, or a cause of, arterial fibrillation. Dr. JJB also entertained the possibility of pneumonia and heart ischemia. He considered LM to be a critically ill patient. Dr. JJB testified that he put a nonrebreather face mask on LM with the highest concentration of oxygen. The use of the nonrebreather face mask was documented in the emergency room records. According to Dr. JJB, he administered Diltiazem to reduce LM’s heart rate and “would typically” administer a dose of Lasix to get rid of extra body fluid. Dr. JJB further testified that he would have probably given LM an antibiotic in case there was pneumonia. Notwithstanding Dr. JJB testimony with respect to the administering of the aforementioned treatments, with the exception of the use of the nonrebreather mask, the emergency room records did not indicate that LM was provided with any of the other treatments discussed by Dr. JJB at his deposition. Additionally, Dr. JJB testified that nurses at Mount Sinai assisted in the emergency room treatment provided to LM, however, it does not appear that any nursing notes were generated in connection with such treatment.

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A Nassau County Family Lawyer said that, the current motion by Petitioner is to vacate a determination of the Nassau County Department of Consumer Affairs (DCA) to the effect that Plaintiff Corporation was an unlicensed home improvement contractor in violation of the Nassau County Administrative Code. The Cross-motion, denominated a motion by the Respondent, is to confirm the determination of the DCA.

The related action is by plaintiff to recover $90,000 held in escrow after the transfer of title to a single family residence from North Sea to the respondent. The $90,000 included $65,000 which was due to plaintiff on receipt of a Certificate of Completion, and $25,000 for work to be completed after the transfer of title. This Court has previously awarded plaintiff a judgment in the amount of $65,000. The respondent filed a complaint with the DCA that plaintiff was not entitled to payment because they were operating as an unlicensed home improvement contractor in violation of Local Law 6-1970, § 21-11.2.1 The parties appeared for a hearing before Hearing Officer, on June 19, 20082, and a determination was rendered on June 22, 2008. It found Elm Sea in violation of the ordinance and fined them $500.3 A Nassau Order of Protection Lawyer said that, plaintiff appealed and a final determination was rendered on July 9, 2008.4 The Commissioner of the Office of Consumer Affairs rejected the arguments of plaintiff that the work performed on the residence after the closing was in accordance with a contract of sale in which plaintiff, as owner, agreed to perform work on the premises prior to closing. The Commissioner distinguished between the work done before the transfer of title, when plaintiff was arranging for work on its own home, and work done in accordance with a “punch list”. The Respondent concluded that the change order was a contract for home improvement for which a license was required.

The Court concludes that the determination by the Respondent that the “Punch List” constituted a separate and distinct home improvement contract requiring a license for performance is unreasonable. The determination is vacated and the fine in the amount of $500 is set aside. There is no controversy but that the work done by Elm Sea on the home to which it took title on September 1, 20066 did not require a home improvement license. The work was done in accordance with necessary permits and was approved by issuance of certificates of completion.