Plaintiff Seeks Reimbursement for Cost of Tuition for Foster Child

March 28, 2015,

A New York Family Lawyer said that, plaintiff seeks reimbursement for the cost of tuition for a foster child, pursuant to Education Law section 3202(5)(a) which provides for the distribution of the cost of educating indigent children among the school districts of this state. This child's mother, was confined to the Bedford Hills Correctional Facility at Bedford Hills, New York when the child was born on June 27, 1965. The mother, immediately prior to her incarceration, resided for several months in 1964 within the Amityville Central School District. She remained in prison until January 5, 1970 and has thereafter not returned to live in Amityville.

The Nassau County Department of Social Services assumed responsibility for the support and maintenance of Cheryl on February 16, 1966, and ever since, has had her in their charge. It appears that the child was placed in foster care in Westbury at the age of eight months and has received her education within the schools of the plaintiff Westbury School District.

A New York Divorce Lawyer said in each of the two actions Westbury pleads that from January 1, 1974 to June 30, 1978, Cheryl received her education in Westbury and that the cost of tuition, computed pursuant to the formula established by the Commissioner of Education is $4,900.43. In the Amityville action, two other Westchester County school districts and the County of Nassau are named defendants. The actions have been discontinued as against all but Amityville, Bedford Hills and the County of Nassau.

A Westchester County Family Lawyer said the defendant in its answer denies responsibility for the payment of tuition, counterclaims against the plaintiff for the cost of educating an unrelated child, which claim has since been discontinued, and cross-claims against its co-defendants. Defendant denies liability for the payment of tuition, asserting as an affirmative defense that neither the infant nor her mother were residents of the Bedford Hills School District by virtue of the mother's incarceration. Defendant County of Nassau denies that its assumed custodial relationship to the child subjects it to liability for the payment of tuition.
The question posed, therefore, is: to whom falls the responsibility for providing this child, Cheryl Thomas, with a free public school education which is her constitutional right (McKinney's Const. Art. XI, § 1)?

Suffolk County Family Lawyer said the plaintiff argues first that since the child's inmate-mother elected to retain the newborn child in the institution with her during her early months as authorized by Correction Law section 611(2), the child acquired a legal residence in the Bedford Hills School District, which embraces the institution. Of course, a newborn child acquires the residence of its custodial parent, in this case the mother. Was the mother a resident of Bedford Hills Central School District while a prisoner of the State? The Court of Appeals found such contention "preposterous" in 1894 holding that prison "is a place of confinement for all except the keeper and his family" and that no residence is acquired there by virtue of involuntary incarceration. The voluntary relinquishment of a prior residence and the voluntary establishment of a new place of abode, albeit institutional, is an essential ingredient in a determination of residence or domicile. The freedom of choice, to come or go at one's whim or pleasure, at one's own expense or at the expense of others made for one's benefit are bona fide elements of determining residence.

This Court is persuaded that defendant Bedford Hills Central School District never acquired responsibility for the education of Cheryl Thomas by virtue of her having been born within the confines of the Bedford Hills Correctional Facility. The cross-motion of defendant Bedford Hills to dismiss the complaint against it is granted.

Turning to the action against Amityville, the critical point in time at issue is the residence of Cheryl Thomas "at the time the social services district assumed responsibility for the support and maintenance of such pupil. That point is clearly established by the action of the Nassau County Department of Social Services which took control of Cheryl Thomas, as a public charge, on February 16, 1966. On that date Cheryl's mother was an inmate in the Bedford Hills Correctional Facility. However, her legal residence, for the purposes of social services eligibility, was Nassau County and more precisely, the Amityville School District.

The Commissioner of Education has considered numerous inter district conflicts dealing with the assignment of financial responsibility for the education of children who are public charges. In the Matter of Bd. of Ed., Ossining UFSD (17 Ed.Dept.Rep. 10), the Commissioner credits the determination of the social services agency as controlling on the issue of identifying the "sending district".
Here, the certificate of the child's original residence issued by the Commissioner of Social Services of Nassau County is before the Court. The challenge to the Commissioner's determination of Amityville as the "sending district" is not well founded. The Commissioner's determination is properly based upon the fact that the child's mother was a Nassau County resident within the Amityville School District at the time of her incarceration in Bedford Hills. That residence had not changed at the time of Cheryl's birth.

Moreover, as to the Amityville claim against the County of Nassau, there is nothing in this record to suggest that the County "assumed responsibility for tuition costs" for its infant charge. The legislature specifically provided for the payment of tuition for such children by "the school district in which each such pupil resided. Clearly, the appropriate school district in the case of the child is defendant Amityville.

Plaintiff's motion for summary judgment against defendant Amityville is granted. The cross-motion of defendant is, accordingly, denied. The cross-claim of defendant against the County of Nassau is dismissed.

If you are involved in the same case, you will need the help of a Nassau Family Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates.

Court Discusses Reasonable Doubt Regarding Evidence

March 27, 2015,

A New York Family Lawyer said the defendant, Ms. G, a landlord and owner, is charged with various violations of the Incorporated Village of Westbury Building Code at 463 Franklin Street, Westbury, New York on January 31, 2007.

The Facts

Ms. GA, an alleged owner and landlord of real property, to wit: a single family dwelling within the Incorporated Village of Westbury, rented the split level home to various individuals including her niece, Ms. K. Others then sublet or shared space with Ms. K. Ms. K was originally charged with the identical violations as Ms. GA. Just prior to the commencement of trial, the prosecutor moved to dismiss the charges against Ms. K and simultaneously announced that he was conferring immunity upon her and asked the Court to so Order a subpoena for her testimony at trial.

A New York Divorce Lawyer neither the defendant nor the prosecution submitted a demand notice, C.P.L. §240.20 or an Omnibus Motion. Both sides answered ready for trial. No speedy trial issues were raised. Following trial, post-trial memorandums were submitted by both parties in support of their respective positions. This is a decision after trial. For the reasons detailed hereinafter, this Court finds the defendant guilty with respect to Summons 5916, and not guilty of the remaining charges. Accordingly, all remaining summons are dismissed.

Specific Allegations of Statutory or Code Violations

A Nassau County Family Lawyer said that A. Summons No. 5908 §79-12 Construction, alteration, conversion without a permit. Mr. GO, counsel for defendant, asserts in his post-trial memorandum that, each and every summons is in connection with an alleged basement/cellar apartment. Therefore, an essential element of the charge is to prove that the premises actually had a cellar.

A Staten Island Family Lawyer said that post Trial Memorandum from Mr. GO asserts that, it is not disputed that the premises is a split level home. A split-level home is a home that is constructed in such a manner that the floor level of one part of the home is located about halfway between the floor level of the lower level of the home and the ceiling of the upper level of the home. The blueprints, building permits, and photographs confirm the home owned by Ms. GA, the defendant, is, in fact, a split-level home.

Prosecutor KM contends the home has a basement and/or cellar apartment. Mr. KM contends that based on Ms. K's alleged testimony to Building Inspector L, the defendant is maintaining a cellar apartment in the home. It is not a violation of local law to have a cellar, but it is if used as habitable space. Ms. K may, in fact, have claimed there was a cellar apartment in the home, and both building inspectors and Mr. KM may believe there is a cellar apartment in the home.

However, for our purposes, the subjective definitions of what Ms. K, Mr. KM or the building inspectors believe a cellar to be are not legally relevant here. For our purposes, the only cellar that can be present in the home is such that is defined by the Village Code of Westbury. Village Code Section 83-2 defines a cellar as, "that space of a building that is partly or entirely below grade, which has more than ½ of its height, measured floor to ceiling, below the average established finished grade of the ground adjoining the building." Therefore, the burden is on the prosecution to prove that "the space of the building that is partly or entirely below grade has more than ½ of its height, measured floor to ceiling, below the average established finished grade of the ground adjoining the building."

Building plans from 1955 were introduced into evidence by the prosecution. But the Court cannot determine from these architectural plans how much of the so-called cellar was below grade at the time of the construction or when these charges were initiated in March, 2007. The testimony at trial did not add to the Court's understanding in that regard. Furthermore, the testimony did not prove that the cellar was used as an apartment.

Neither building inspector actually observed or physically went in to the alleged cellar. There is no evidence of a cellar existing in Ms. GA's home as defined by the Code of the Village of Westbury, Section 83-2. The only evidence of the existence of a cellar is the alleged statements by Ms. K to building inspectors when they visited the home, and the building plans received in evidence which do not tell us how much of the alleged cellar is below grade, and whether it is being used as habitable space. This alleged testimony is lacking in credibility, as Ms. K's testimony at trial is in direct contravention to the statements by her that Building Inspector Mr. L alleged were made to him when he visited defendant GA's property.

While the statements have been received in evidence, more is required to meet the burden of proof beyond a reasonable doubt. Here, the prosecution has provided alleged statements that were ultimately contravened by the declarant witness during the course of the trial, to substantiate the claim that construction, alteration and conversion took place.

The Court declared Ms. K to be a hostile witness, however, the prosecution was unable to impeach the witness for prior inconsistent statements since she denied making those statements, and there was no independent proof aside from the Inspectors that would establish those facts. If the prosecutor had a photo of the lower level showing a bed and measurements to reveal how much of the area is below grade, then sufficient proof might be made out.

In his post-trial memorandum, prosecutor KM asserts, "Testimony received from Mr. L and Janet K established that this area of the premises has been altered and converted to a kitchen and living space without a permit." However, without corroborating evidence such as the aforementioned, these alleged statements will not provide enough evidence to permit this Court to convict on this charge, especially since Ms. K has recanted any corroborative statements alleged to have been made by her.

Accordingly, Summons No. 5908 charging Ms. GA with construction, alteration and conversion without a permit is appropriately dismissed.

B. Summons No. 590979-15B Occupancy without obtaining a Certificate of Occupancy (Basement Apartment)

Here, neither investigator actually established that PB and C were occupying the portion of the alleged cellar apartment in the house. The only evidence to convict on this charge is testimony from Mr. L, a building investigator, stating that Ms. K told him that PB and C lived in a cellar apartment. Neither investigator actually physically observed anyone living in the basement, or confirmed that anyone was living in the basement area, outside of the statements the building investigators allegedly received from Ms. K during their trip to the property. PB and C did not testify. No other alleged tenants testified.

Accordingly, Summons No. 5909 charging Ms. GA with occupancy without obtaining a Certificate of Occupancy is dismissed.

C. Summons No. 591079-15C Conversion (Change of Use)
Here, the presumptions provided by law to prove violation under consideration have not been sufficiently proven in this case. Accordingly, this charge is dismissed.

D. Summons No. 591183-6C(2) Cellar used as habitable space
A cellar may be used for storage and recreation. A cellar is there defined as: "That space of a building that is partly or entirely below grade which has more than one-half of its height, measured floor to ceiling, below the average established finished grade of the ground adjoining the building."

It should not be used as a sleeping area. There is insufficient proof in this record to show that this section has been violated. Accordingly, this charge is dismissed.

E. Summons No. 5912112-7 Electrical work performed without a license
It appears that Mr. KM would have this Court believe that the defense is obligated to submit proof demonstrating that work was performed by a licensed electrician, even if no work was, in fact, performed. Mr. KM's statement is based on the presumption that because the Building Inspector alleged that Ms. K told him electrical work on the lighting in the alleged basement area of the house was done, it in fact, was. However, Ms. K's testimony during trial does not confirm that electrical work was conducted in the basement; rather, it is in direct contravention to statements Mr. L alleged Ms. K made to him.

What we have here is a classic he-said, she-said. In such an instance, in order to prove this charge beyond a reasonable doubt, the People would have to provide something further than the alleged statements made to the Building Inspector by Ms. K. There needs to be some corroborating evidence. The People have failed to provide anything to corroborate what the Building Inspector alleges that Ms. K told him. Therefore, the People have not proven this charge beyond a reasonable doubt, and Summons No. 5912 charging Ms. GA with having electrical work performed without a license, is accordingly dismissed.

F. Summons No. 5914184-4 Plumbing without obtaining a license. (Basement/apartment/bathroom)

The prosecution asserts in its post-trial memorandum: "Mr. L testified that a gas stove was installed in the lower level of the premises." Yet, Mr. L never actually observed a gas stove installed in the lower level of the premises, because he did not enter the lower level of the premises at any time. Yet, the prosecution asserts in its post-trial memo that, "The Defendant has offered no testimony that the plumbing to install the stove was performed by her."
Similarly to the charges outlined above, prosecutor KM is asserting that defendant is obligated to offer testimony establishing that plumbing work, which he has not proven beyond a reasonable doubt was conducted at all, was performed by her. To sustain a conviction, there needs to be some corroborating evidence. Again, prosecutor KM has failed to provide anything to corroborate what the Building Inspector alleges that Ms. K told him. Accordingly, Summons No. 5914 charging the defendant with plumbing without a license is dismissed.

G. Summons No. 5915184-7A Plumbing without a permit
Here, again, there was no observation by any building inspector of any stove installed in lower level of premises, or any evidence of any plumbing being conducted to install stove. Prosecutor KM is asserting that defendant should produce a permit for plumbing which he has not proven beyond a reasonable doubt was conducted at all. Accordingly, Summons No. 5915 charging the defendant with plumbing without a permit is dismissed.

H. Summons No. 5916248-283 Renting without obtaining a Permit
The testimony here is that there were tenants in the premises which was not occupied by Ms. GA, the owner. There was also testimony that the tenants contributed toward the payment of the mortgage. While not referred to as rent per se, the Court finds that this was rent under these circumstances and sustains that charge. The tenants' names do not appear on any note or mortgage and they receive no benefit for their contributions to the mortgage other than a place to stay. The owner can label it whatever she wishes, but as far as this Court is concerned, it is rent and the owner is renting without a required permit. The defendant is guilty of renting without a permit.

Issues of violations under the existing laws regarding family-dwelling can be better answered by an expert family lawyer. The Stephen Bilkis & Associates and its Nassau County Family Attorneys and Nassau County Family Lawyer can provide you solutions to almost all kinds of dwelling violation issues.

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Court Decides Custody in Light of Sexual Abuse Allegations

March 25, 2015,

A New York Family Lawyer said following an 11-day hearing, Family Court, by order entered September 15, 2005, awarded respondent wife sole legal and physical custody of the parties' minor child, D (born in 2000), and established a visitation schedule for petitioner. Family Court did so with great hesitation, noting respondent's marked weaknesses as a parent, including her insistence that petitioner sexually abused the child—despite the lack of sufficient credible evidence to sustain that allegation—and her noted lack of effort to encourage any sort of a relationship between the child and petitioner.

Shortly thereafter, respondent failed to produce the child for a scheduled visitation with petitioner in Nassau County, prompting Family Court to order the parties to appear on September 28, 2005 to address this issue. At that time, it came to light that respondent recently had informed the child's school psychologist that petitioner had sexually abused the child; the school psychologist, in turn, filed a report with the Nassau County Department of Social Services. Respondent conceded that she did not advise the school psychologist of the prior proceedings in Family Court or that the allegations of abuse had been thoroughly explored and laid to rest in the course thereof. Family Court then directed that neither party discuss the prior allegations of sexual abuse with anyone without the express permission of the court.

A New York Divorce Lawyer said not withstanding that specific directive, respondent proceeded on September 30, 2005 to file a family offense petition in Nassau County Family Court seeking an order of protection and alleging that petitioner had sexually abused his son. Respondent again failed to mention the prior custody hearing and the findings made by Family Court with regard to such allegations. As a result of respondent's actions, petitioner was arrested and taken into custody.

A Westchester County Family Lawyer said the petitioner thereafter moved by order to show cause for the child custody (legal and physical custody) of his child. Family Court made the motion returnable on October 13, 2005, at which time the parties were directed to appear before the court for a conference. Respondent specifically was advised to appear with the child on this date. Respondent did not appear as directed, electing instead to abscond with the child, whose whereabouts remained unknown for the next 15 days. Petitioner, who by now had obtained temporary custody of the child, then commenced this proceeding seeking sole legal and physical custody of his son.

A Suffolk County Family Lawyer said a lengthy hearing ensued, at the conclusion of which Family Court found that petitioner had established a substantial change in circumstances—namely, respondent's persistent and active interference with petitioner's visitation rights, respondent's absolute failure to comply with the court's prior directives and her continuing refusal to accept the court's finding that there was insufficient credible evidence to establish that petitioner sexually abused his son.

Family Court further noted respondent's lack of maturity and poor judgment, as evidenced by her attempts to engage in forum shopping and actively misrepresent the status of the then pending Family Court proceedings in Columbia County, as well as what the court characterized as respondent's "dangerous obsession" with the notion that her child had been sexually abused, the latter of which, Family Court concluded, ultimately would cause emotional and perhaps physical harm to the child. Despite these detailed findings, Family Court nonetheless concluded that respondent should retain sole legal and physical custody of the parties' child, reasoning that petitioner's relationship with his son could be ensured and enhanced by providing him with more visitation and again prohibiting respondent from discussing the allegations of sexual abuse without providing copies of the court's September 15, 2005 and May 18, 2006 orders.

Petitioner's subsequent application for a stay of Family Court's May 18, 2006 order pending appeal was granted by this Court.

We conclude, based upon our review of the record as a whole, that Family Court's decision to award respondent sole legal and physical custody of the parties' minor child lacks a sound and substantial basis and, as such, cannot stand. Accordingly, for the reasons that follow, we reverse Family Court's order, grant petitioner's application for sole legal and physical custody of the parties' minor child and remit this matter to Family Court to fashion an appropriate visitation schedule for respondent.*

Preliminarily, we agree that petitioner demonstrated a sufficient change in circumstances to warrant modification of Family Court's prior award of custody in order to ensure the continued best interests of the child and, further, that the record in large measure substantiates the factual findings made by Family Court. Our quarrel instead lies with Family Court's conclusion that, notwithstanding her demonstrated flaws as a parent, respondent nonetheless was best suited to serve as the child's custodial parent.

In this regard, a review of the record reveals that respondent repeatedly interfered with petitioner's visitation rights, conceding, in what Family Court characterized as a "rare moment of candor," that she had no intention of permitting petitioner to have unsupervised visitation with the child. As this Court previously has held, a custodial parent's persistent interference with the noncustodial parent's visitation rights may well render the offending parent unfit.

Consistent with respondent's efforts to undermine any sort of positive relationship between petitioner and his son is her ongoing quest to brand petitioner a pedophile—despite Family Court's repeated findings that there simply is not sufficient credible evidence to sustain such allegations. Notwithstanding Family Court's best efforts to curtail respondent's activities in this regard, she has continued to assert the same allegations time and again without any regard for or reference to the prior court proceedings, conceding that she has told any number of individuals that her child now resides with a pedophile and acknowledging her attempts to lodge criminal charges against petitioner. In our view, repeatedly making unsubstantiated allegations of abuse without any apparent regard for the effect that such conduct has upon either her child or her child's relationship with his father again raises a strong inference that respondent is unfit to serve as the child's custodial parent.

Respondent has demonstrated an absolute and unqualified unwillingness to abide by Family Court's prior orders and directives, candidly testifying that she did not believe Family Court's decision to award temporary custody to petitioner to be in the child's best interest and that she would continue to do what she deemed rightful in order to protect her son. Thus, although petitioner indeed has his share of parental shortcomings, we cannot justify awarding sole legal and physical custody to a parent who cannot be trusted to put her child's interests ahead of her own and/or comply with whatever directives Family Court may impose. Simply put, respondent's repeated interference with petitioner's parental rights, coupled with her crusade to brand petitioner a pedophile and her well-documented refusal to abide by Family Court's prior orders, warrants granting petitioner's application and awarding sole legal and physical custody of the parties' minor child to him.

When fighting for the custody of your child, the circumstance surrounding the family, before and after, will affect most of the determination of the court in awarding custody to the proper spouse. The Court will always look and rule for what is the best interest of the child.

The Stephen Bilkis & Associates together with its Nassau County Family Attorneys can help you if you have same predicament in the above case. Also, our Nassau County Order of Protection Attorneys can assist you in providing adequate security by asking courts for protective orders.

Court Discusses Application of Mental Hygiene Law

March 24, 2015,

A New York Family Lawyer said that, in 1971, a mildly retarded individual was admitted to the Wassaic Developmental Center, a State institution for the mentally retarded. At the time of her admission, she was 16 years of age, and had a known history of epileptic seizures which rendered her immobile for minutes at a time. Her medication, Dilantin, kept her epileptic condition under control although she did continue to experience some seizures following her admission. In 1974, the child was placed in a family-care home. At the time of the placement, 6the foster mother was informed by social workers that the child was an epileptic, but was never given any records regarding her condition. The foster mother was told that the child was to take her medication three times a day. Between the years 1974 and 1978, the child suffered periodic seizures while under the foster parents’ supervision.

A New York Divorce Lawyer said the foster’s residence had been certified by the State as a family-care home following an inspection in or about 1975. A recertification was made in 1977. During the certification inspections, as well as intermittent other inspections, no hazardous conditions were found to exist in the home. The second-floor bathroom, where the underlying incident occurred, was outfitted with a bathtub, commode, sink and closet. The bathtub, which was enclosed by sliding glass doors, was equipped with a showerhead and faucet with one control for the hot and cold water. The door to the bathroom was a solid, standard, wood type with a butterfly lock below the handle on the inside of the bathroom. There was no turning device for the lock on the outside of the door. The foster’s were never directed to remove or change the lock on the bathroom door.

A Queens Family Lawyer said that on April 7, 1978, at approximately 7:00 P.M., the child went to take a bath in the upstairs bathroom. Although she had not been told to do so, she locked the bathroom door. She stepped into the bathtub, turned on the hot water, and then suffered an epileptic seizure which rendered her immobile. At approximately 7:15 P.M., the foster mother became aware of the problem when another mentally retarded client residing in the home summoned her. Upon arriving at the bathroom, she discovered the door locked. By looking underneath the door, she was able to observe the child standing in the corner of the tub, with her back against the wall, and away from the shower spout. The bathroom door was eventually forced open and the claimant was transported to the hospital. The child was diagnosed as having suffered first, second and third degree burns on her lower legs and ankles.

A Long Island Family Lawyer said that, the instant claim against the State was commenced in 1980, seeking to recover $5,000,000 for personal injuries, $750,000 on a derivative claim and $10,000,000 in punitive damages. Following a trial, the Court of Claims found, in the first instance, that the State had the primary responsibility for the child’s care and safety and as such was required to insure that any potentially unsafe condition which might exist in the subject family-care home be remedied. The court also determined that the foster parents were agents of the State and, therefore, negligence on their part was imputable to it. Based on the facts as adduced at the trial, particularly the child’s known history of epileptic seizures, the court concluded that the State was negligent in permitting them to have a bathroom door in their family-care home equipped with a lock which could not be opened from the outside. Such negligence was further found to have been a proximate cause of the injuries suffered since, as a result thereof, the child was exposed for several minutes to water of such a temperature that it resulted in severe burns. She was awarded $125,000 as full compensation for her injuries. The derivative claim and the demand for punitive damages were dismissed.

The issue presented by these appeals is whether the State may be held directly liable for injuries sustained by a mentally disabled individual, while a resident of a State-certified family-care-home in which she had been placed by the State pursuant to Mental Hygiene Law article 31.

Before discussing the issue of the State's direct negligence in this case, we note that a question arises as to whether the Court of Claims' determination that the foster parents negligence could be imputed to the State was proper. Mental Hygiene Law article 31 and the regulations promulgated thereunder provide for the placement of mentally disabled persons in State certified family-care homes. Such facilities are defined as "the combination of a private residence and a family certified by the commissioner according to regulations stated elsewhere in this part to provide care for no more than 10 mentally disabled persons". A family-care provider is "a person or persons to whom an operating certificate has been issued by the commissioner to operate a family care home". Placement in a family-care home acts as a conditional release which terminates the State patient's inpatient status and sets up an arrangement of outpatient care and treatment.

In considering the issue of whether the State could be vicariously liable for the negligence of a family home-care provider. That case involved a mentally disabled individual who had been committed to a State institutional school. During the claimant's confinement, the school entered into a custodial contract with a nearby farmer, allowing the claimant to work on the farm on "convalescent status". While working on the farm, the claimant sustained physical injuries when he fell 40 feet from the top of a scaffold erected on the outside of a silo. The trial court in Hawley found the State vicariously liable for the claimant's injuries.

This holding, however, does not mandate that the Court of Claims' modified judgment be reversed and the claim dismissed. If the record supports a finding that the State was independently and directly negligent vis-a-vis the claimant, the additional holding in the Court of Claims' decision imputing the fosters’ negligence to the State is mere surplusage which would not nullify the ultimate judgment in favor of the claimant. Having eliminated the State's alleged derivative responsibility for possible negligence of the contract-service providers, it must, therefore, be determined whether the State can be found to be an independent tort-feasor based upon direct negligence on its part under the specific facts of this case.The State is not an insurer against any and all injuries suffered by mentally disabled patients in its care.

It is well settled, however, that the State is under a duty to exercise reasonable care in protecting such patients so as to prevent their being injured that: "The cause of injury, however, must be one that the State could reasonably foresee before liability attaches. The degree of reasonable care is measured by the physical and mental infirmites of the patients as the hospital officials and employees know them.
A claimant, in order to establish the negligence of the State, must show that it was reasonably foreseeable that an injury could occur but need not demonstrate that the precise or exact manner in which the accident occurred was foreseeable or could be anticipated. In the instant case, the resolution of this issue requires a study of the State's policies and programs with respect to mentally disabled persons such as the subject child.

Over the years there has been an acceleration in the community placement programs, such as family-care homes, so that the State's patients could live in smaller, less regimented, home-like environments in a local community. Such programs came about due to the exposure and subsequent furor surrounding the deplorable conditions existing at Willowbrook Developmental Center in 1977. The overpopulation therein, with the resultant problems, caused a major rethinking of and radical changes in the methods of treatment to be afforded at State's facilities, including Wassaic Developmental Center.

In addition to reducing the populations of such facilities, a major goal and concern was the creation of safer, more normalized environments and life styles for the patients. Indeed, 14 NYCRR 87.8(d), in setting forth the duties and responsibilities of family-care providers, states, in particular, that they shall "(1) provide a home-like, family living environment. The family-care provider must ensure a resident's right to reasonable privacy". The whole thrust of the normalization theory was to embark on programs providing new and stimulating experiences so as to allow the patients to develop beyond a mere simple existence.

As this normalization process was the primary basis of the family-care home program in which claimant was a participant, she was encouraged to be more responsible for herself in daily living in an attempt to normalize her life. To assist her in this endeavor, a clinical staff, under the supervision of a treatment team leader, was assigned to follow her progress as a family-care home patient. Such teams followed up on the clinical aspects of an individual's treatment plan developed at the time of release. A major part of such treatment, as with the entire normalization program, was the encouragement of feelings of independence and self-sufficiency in the individual clients. The purpose of the team was to insure that the specialized needs of a patient were being met, and that a healthy, ideally normalized environment was being provided.

The State was aware that such environments, with more freedom and privacy, entailed greater risks for its family-care home patients, as opposed to other patients in more restrictive programs. Of particular import is the fact that, while rules applicable to community residences or multiple dwellings require bathroom door locks to be operable from the outside to facilitate opening in the event of an emergency, such a requirement did not apply to the home-care program. The general expressed objective of the State was that such environments were to be normal and homelike rather than danger-free for the general home-care patient. As a general rule, such objectives may be deemed laudable and appropriate. Unfortunately, Adrienne was subject to the unique problem of a seizure disorder, which fact was well known by her team leader, members of the team and the foster parents prior to April 1978.

It is well settled that a finding of negligence does not impose liability unless such negligence is found to have been a proximate cause of the injuries suffered. The claimants' burden then is to show that the State's conduct was a substantial causative factor in the sequence of events which led to the injuries. However, such a showing needs not be made with absolute certainty nor exclude every other possible cause of the injury. Whether or not the delay occasioned by the locked bathroom door was a substantial factor in causing the injuries sustained is a question of fact which may be determined by a review of the expert medical testimony.

All of the experts agreed that the amount of time during which the skin is exposed to a source of heat is a significant factor in the development and degree of severity of the resulting burn. The body's ability to disperse the heat being applied to it is diminished as the temperature of the water increases and as more of the body surface is covered by the water. Here it is apparent that certain critical limits were exceeded with respect to the temperature of the water, the area of skin exposed to the heated water and the amount of exposure time which necessarily resulted in the severe burns sustained by Adrienne. The facts and circumstances were present in sufficient quantity and quality so as to permit a finding that the child’s injuries were caused by prolonged exposure to hot water resulting from an inability to expeditiously rescue her. We find no reason to disturb that finding since the defendant's negligence with respect to the lock caused the delay and was, therefore, a substantial factor in causing Adrienne's ultimate injuries and was a proximate cause thereof.

While we agree with the State that Adrienne was entitled to privacy, we find insupportable, with respect to her particular situation, the position of the Commissioner of Mental Health that the interest of such privacy in family-care homes overrides the interest in access to bathrooms from the outside, even where such access would be indicated because of the specific conditions of a resident. These two interests are not mutually exclusive. The State's duty herein was to provide Adrienne with a reasonably safe environment given its knowledge of her known propensity for seizures. The fulfillment of that duty could very well have been accomplished by a bathroom lock which permitted entry from the outside by a key kept exclusively in the possession of the foster parents. This would have accommodated the patient's right to privacy while, at the same time, providing immediate access in emergency situations such as that which did, in fact, occur.
This court is in full sympathy with the goals and ideals upon which the normalization process is based and is, therefore, loathe to judicially impose liability which might prompt the State to limit or abandon family-care home programs due to the potential financial burden. Where progress has been achieved in the care, treatment and rehabilitation programs of the mentally ill or disabled, the courts, in exercising their judicial responsibilities, should act with restraint in imposing burdens upon such programs. Despite our reluctance to inhibit the State, in any way, from continuing to structure similar rehabilitative and normalization programs, the particular facts of this case permit the imposition of liability upon the State.

Accordingly, the court held that the modified judgment appealed from should be affirmed.
Do you know a child being neglected? Seek the legal advice of a Nassau Domestic Violence Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates.

Court Decides Complicated Neglect Case

March 23, 2015,

A New York Family Lawyer said the Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition dated August 23, 2007, containing nine charges of professional misconduct. After a preliminary conference the Special Referee sustained charges one through six but found that charges seven through nine had not been established by a fair preponderance of the credible evidence. The Grievance Committee now moves to confirm the Special Referee's report. The respondent cross-moves to confirm the Special Referee's report with respect to charges seven, eight, and nine and to disaffirm with respect to charges two, four, five, and six.

A New York Divorce Lawyer said a charge one alleges that the respondent allowed his professional judgment on behalf of his clients to be affected by his own financial, business, property, or personal interests in that during the course of his representation of two clients (hereinafter the clients) in a child neglect matter pending in Family Court, he had the clients convey title to their home to him in order to prevent a foreclosure sale of the property and, thereafter, sought to evict them while continuing to represent them in the Family Court matter, in violation of Code of Professional Responsibility.

On or about February 21, 2001, the clients' lender, XXX Financial Network, commenced a foreclosure action against them with respect to their residence. That action resulted in a judgment of foreclosure, in favor of the lender. The clients entered into a forbearance agreement with the lender on or about May 24, 2002, by which the lender agreed to postpone the foreclosure sale provided the clients made timely and consistent payments pursuant to a plan.
On or about August 30, 2002, Child Protective Services served a summons and petition upon the clients alleging neglect and endangerment of their 11-year old son. The neglect proceeding was adjourned to September 23, 2002, and the clients retained the respondent to represent them.

A Suffolk County Family Lawyer said the respondent requested and received from the lender payoff quotes, the latest of which stated that the amount necessary to satisfy the clients' mortgage through October 10, 2002, was $244,741.39. The neglect proceeding was adjourned to November 12, 2002, and the foreclosure sale was rescheduled for November 6, 2002.

On the evening of October 10, 2002, the respondent had the clients execute and deliver to him a deed conveying their premises to him. They were not represented by independent counsel with respect to that deed. The deed bears the signature and notary stamp of the respondent's law partner, KC, purportedly evidencing that it was signed in his presence on October 10, 2002. KC was not present at the time.

On or about October 11, 2002, the respondent remitted funds totaling $244,690.73 to the lender in satisfaction of the clients' mortgage. On or about October 16, 2002, the respondent caused the deed, with the purported signature of KC, to be recorded in the Nassau County Clerk's office.

On or about October 23, 2002, the respondent prepared and mailed to the clients a lease, establishing a landlord/tenant relationship between respondent and the clients.

On or about January 17, 2003, while still representing the clients in the neglect proceeding, the respondent commenced a summary nonpayment proceeding against them for rent arrears for three months, pursuant to the alleged oral agreement. The clients appeared in District Court on February 4, 2003, without independent counsel and entered into a stipulation wherein they acknowledged arrears of $5,400 and consented to the entry of a judgment of possession and the issuance of a warrant of eviction against them if they failed to pay those arrears within 45 days, pursuant to a schedule.

The respondent received a money order for $1,800 from the clients on or about February 4, 2003. Upon the clients' failure to meet the next payment under the stipulation, the respondent submitted an affidavit of noncompliance and proposed judgment and warrant of eviction to the District Court. On February 24, 2003, the respondent received from the court the signed and entered judgment and warrant of eviction.

While still representing the clients in the neglect proceeding, the respondent forwarded copies of the warrant and a check for $87.50 to the Nassau County Sheriff to evict the clients. On April 2, 2003, the respondent appeared with the clients in Family Court for the final hearing in the neglect proceeding. The respondent wrote a letter to the Nassau County Sheriff withdrawing the warrant and staying the scheduled eviction.

On or about April 8, 2003, the clients sued the respondent and his law firm in the Supreme Court, Nassau County, to vacate the deed and enjoin him from evicting them. The Supreme Court action was settled by stipulation on or about December 1, 2004. On or about December 30, 2004, the respondent received $350,000 from the clients and executed and delivered a deed reconveying the premises back to them.

Charge two alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer, in violation of Code of Professional Responsibility, by virtue of the factual specifications of charge one.

Charge three alleges that the respondent entered into a business transaction with the clients wherein they had differing interests; the clients expected him to exercise professional judgment for their protection; the respondent failed to disclose, in writing and in a manner reasonably understandable to the clients, the terms of the transaction; and the respondent failed to obtain the clients' written consent to the terms of the transaction and the respondent's inherent conflict of interest in the transaction, in violation of Code of Professional Responsibility.

At all relevant times between September 10, 2002, and April 3, 2003, when the respondent was engaged as the clients' attorney with respect to the neglect proceeding, they believed that he was exercising professional judgment on their behalf and acting to protect their legal interests. When the respondent had the clients execute and deliver the deed to him, he failed to disclose, in writing and in a manner reasonably understandable to them, the terms under which they were conveying their interest to him. Nor did the respondent fully disclose his inherent conflict of interest. The respondent failed to advise the clients to seek the advice of independent counsel before entering into the transaction and failed to obtain their written consent to the terms of the transaction and to the respondent's inherent conflict of interest.

Charge four alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer, based on the factual specifications of charges one to three.

Charge five alleges that the respondent intentionally prejudiced or damaged the clients during the course of their professional relationship by seeking to evict them from their home during the pendency of the child neglect proceeding.

By virtue of the neglect proceeding, the clients were faced with the potential removal of their son from their custody and home by Child Protective Services. By commencing the landlord/tenant action and seeking to evict the clients during the pendency of the neglect proceeding, the respondent intentionally undermined their ability to present a stable home environment and successfully defend themselves in the child neglect proceeding.

Charge six alleges that the respondent engaged in conduct adversely reflecting on his fitness as a lawyer, based on the factual specifications of charges one to five.

Charge seven alleges that the respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation by knowingly offering a deed containing a false notarization for filing with the Nassau County Clerk and by falsely testifying under oath concerning the circumstances surrounding the execution and notarization of the deed.

Charge eight alleges that the respondent engaged in conduct prejudicial to the administration of justice, based on the factual specifications of charge seven.

Charge nine alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer, based on the factual specifications of charges one to eight.

Based on the evidence adduced, we conclude that the Special Referee erred in failing to sustain charges seven, eight, and nine. Accordingly, the Grievance Committee's motion to confirm the Special Referee's report in part and to disaffirm that report in part is granted and we sustain all nine charges. The respondent's cross motion to confirm the Special Referee's report to the extent that it fails to sustain charges seven, eight, and nine and to disaffirm it to the extent that it did sustain charges two, four, five, and six is denied in its entirety.

In determining an appropriate measure of discipline to impose, the respondent asks the court to note his altruistic motivation, his expressed regret, his previously-unblemished record, and the favorable character letters submitted by six locally practicing attorneys. As evidence of his intent to aid the clients, the respondent points out an admission by one of the clients under oath that the respondent gave him approximately $600 to $800 to get the utilities back on in his residence. The respondent further points out that this matter did not emanate from a complaint by the clients inasmuch as his conduct did not impact upon his representation of them in Family Court. He maintains that his questionable transactions and conflicts were not aggravated by additional misconduct.

While he may have suffered from the fiscal irresponsibility of his clients, the respondent evinced serious misjudgment in commencing an eviction proceeding against them while continuing to represent them in a pending Family Court matter. Balancing the clients with his display of gross misjudgment, we conclude that respondent should be suspended from the practice of law for a period of four years.

ORDERED that the Grievance Committee's motion to confirm in part and disaffirm in part the report of the Special Referee is granted and all nine charges are sustained; and it is further, ORDERED that the respondent's cross motion is denied in its entirety; and it is further, ORDERED that the respondent is suspended from the practice of law for a period of four years, commencing April 23, 2010, and continuing until the further order of this Court, with leave to the respondent to apply for reinstatement no sooner than six months prior to the expiration of the four-year period, upon furnishing satisfactory proof that during that period he (a) refrained from practicing or attempting to practice law, (b) fully complied with this order and with the terms and provisions of the written rules governing the conduct of disbarred, suspended, and resigned attorneys, (c) complied with the applicable continuing legal education requirements and (d) otherwise properly conducted himself.

The parent of a child has the primary right to the custody and rearing of their children. However, these rights can be jeopardized due to a finding of neglect against one or both of the parents of a child.

Neglect cases must be properly addressed. Otherwise, parental rights can be terminated. Call the Stephen Bilkis & Associates when faced by this kind of court issues. Our Nassau County Family Attorneys and Nassau County Order of Protection Attorneys are always ready to defend and advance cause.

Court Discusses the Meaning of "Household" Under the Family Court Act

March 22, 2015,

A New York Family Lawyer said that, the defendant was charged by an information sworn to by the complainant with a violation of Section 242, subd. 3 of the Penal Law, in other words, with a second degree assault. Upon arraignment, he was represented by counsel, namely the office of the Public Defender of the County of Nassau. His lawyer asked that the matter be transferred to the Family Court of this County to be there treated as a family offense.

A Nassau Spousal Support Lawyer said that, in support of his application, counsel states that the complainant, and the defendant, has lived together at 36 Carney Street, Glen Cove, New York, for a period of time, that they have their shared the same apartment and that in general, they have held themselves out to be man and wife. Defendant's counsel further informed the Court that the complainant and the defendant have never been married to each other by either a ceremonial service or a civil one, nor has a marriage license ever been issued to them.
None the less, it is asserted that the circumstances under which the complainant and defendant live with each other are such as to constitute them a household within the meaning of Section 812 of the Family Court Act. Since the institution of the Family Court Act in 1962, a number of cases have been heard in this County construing the ambit of Section 812 in situations approximately similar to the one outlined above.

A New York Divorce Lawyer said the Judges of the Family Court, it was uniformly held that there need not be a valid subsisting marriage relationship at the time of the occurrence in order to permit a transfer to the Family Court as a family offense; but that instead, the entire circumstances were to be looked into in each case and would be decided upon the facts found to exist. This appears to be in keeping with the intent of the framers of the Family Court Act. The committee comment to Sec. 812 shows that they expected the question of whether or not a particular situation constituted a family offense to be determined by 'the common law method of case by case adjudication to define 'family', 'household', and 'disorderly conduct' for purposes of the civil proceeding provided in this article.'

Further, we would be blind to human experience if we did not realize that the proximity to each other of the complainant and the defendant living as they were in the same household may well have given rise to whatever situation caused the alleged assault in this instance. That being the case, the absence of a marriage contract between these parties does not render less appropriate the conciliation procedures envisioned by the Family Court Act.

Nassau County Family Lawyer said it would thus appear that this matter is a family offense as the same is designated by the Family Court Act and one that arose between members of the same household. A further problem is presented however, by reason of the fact that this defendant is charged not with an assault in the third degree, but a second degree assault. A divergence of opinion has appeared in the reported decisions in this State as to [48 Misc.2d 538] whether or not the phrase 'assault' used in Sections 812 and 813 of the Family Court Act refer to felonious assaults.

A Staten Island Family Lawyer said the Court then turned its attention to the interpretation to be given to the word assault as used in Article 8 of the Family Court Act and the unanimous opinion held, 'We may not presume that the inclusion in the statute of all family assaults rather than merely misdemeanor assaults within the exclusive original jurisdiction of the Family Court was casual or not carefully considered. This law was drafted by the Joint Legislative Committee on Court Reorganization, and we must assume that the language employed was carefully selected. Further, as against the determination in the cases above cited that family assaults, as defined in the act, would encompass only misdemeanors, the Judicial Conference has stated: 'The jurisdiction of the Family Court is not limited to any particular degree of assault.'

In the absence of a clear, and apparent unconstitutionality of Sec. 813, and in view of the defendant's demand that the matter be transferred to the Family Court, this Court feels constrained to hold as follows: having found that the criminal complaint charges an assault, whether it be felonious, or not, between members of the same household, then upon request, timely made, by the defendant, the matter must be transferred by the committing magistrate to the Family Court.

It is obvious the magistrate and the Family Court Judge will avail themselves, dependent upon the particular situation presented, of the powers given to them respectively by the addition in 1964 of present Sections 814 and 815 of the Family Court Act, allowing them to hold the defendant, or admit him to bail, or parole him.

It is respectively held that the holding of the Appellate Division of the Second Department, in the matter of Ricapito v. The People, 20 A.D.2d 567, 245 N.Y.S.2d 846, is not a bar to the above finding inasmuch as the decision there would appear to be that the question sought to be raised was not a proper one for review at that time. The memorandum by the Appellate Court went on to say (p. 568, 245 N.Y.S.2d p. 848), 'At this time, we refrain from passing upon any other questions.'

Therefore, the application of the defendant, through his counsel, is granted and this matter is transferred to the Family Court. He is directed to appear there on October 25, 1965, pursuant to order of even date signed herewith.

If you want to file spousal support seek the assistance of a Nassau Family Attorney and Nassau Spousal Support Attorney at Stephen Bilkis and Associates.

Family Court Deals with Firearm Issue

March 21, 2015,

A New York Family Lawyer said at the hearing, the Deputy Sheriff testified on behalf of the Sheriff's Department. He testified that the Sheriff's Department's general rule in returning firearms is that the return is made when an order from the court is provided to the Sheriff's Department. According to him, in the past six years that he worked with the department, there were only two orders given by the Supreme Court for the return of firearms, the remainder were considered by the Family Court.

A New York City Family Lawyer said the former wife of the petitioner chose not to appear, although the Law Guardian had spoken to her, and she indicated that she had no objection to the return of the firearms provided they were safely stored. As previously stated, she had also consented to the vacating of the Order of Protection. At the conclusion of the hearing, the court reserved decision pending a background check of the petitioner to ensure that there was no activity or history that would preclude the return of the firearms.

A New York Divorce Lawyer said section 842-a of the Family Court Act provides the Family Court with the authority to revoke or suspend a firearms license and order immediate possession. However, the section does not specifically provide authority to the Family Court judge to return the firearms ordered to be seized. In a case, the Appellate Division held that the Family Court did not have jurisdiction to issue an order directing the return of firearms which movant had surrendered pursuant to previous court orders. The Appellate Division held that the movant's remedy was instead to make an application to the officer that had custody of the firearms.
Since there is no law and no enabling legislation directing the Family Court judge to order the return of the firearms, once Family Court jurisdiction is lost, the burden is put on this court, which does not have the comparable knowledge or background on cases litigated in the Family Court.
Since a Family Court judge has the authority to issue orders of protection and vacate said orders of protection, it appears to be a legislative oversight in not providing the Family Court judge with continued jurisdiction to determine whether the firearms seized pursuant to that judge's Order of Protection can be returned to the offending party. Once Family Court jurisdiction is lost, the decision to determine the return of said firearms is now left to a judge who is not familiar with the history of the family, the parties, and any alleged violence that may have transpired resulting in the issuance of the Order of Protection and seizure of said firearms.
Presently, the Integrated Domestic Violence Court has been instituted in New York State by the Chief Judge in order to have one judge handle not only the parties' divorce proceeding and/or Family Court proceeding but also any alleged criminal actions arising from domestic violence in conjunction with those proceedings in order to avoid the past situations where different judges were handling different aspects of the case and were unaware of the family history of violence.
Similarly, the Family Court judge who issues an Order of Protection with seizure of firearms should be given the authority to decide whether to allow the return of said firearms rather than the bifurcation of the two issues of the Order of Protection and the return of firearms between two judges.

A Manhattan Family Lawyer said that accordingly, the court strongly urges legislation to amend section 842-a of the Family Court Act to provide Family Court judges with not only the authority to seize firearms pursuant to an Order of Protection but also the discretion to determine when or if said firearms should be returned.

Here in Stephen Bilkis and Associates, we help those who were abused by a family member, our Nassau County Order of Protection Lawyers are always willing and ready to help you. For other matters, you can also consult our Nassau County Family Attorneys.

Nonparty Witness Moves for an Order to Quash Subpoena Duces Tecum

March 20, 2015,

A New York Family Lawyer said that, the nonparty witness moves for an order pursuant to CPLR 2304 quashing the subpoena duces tecum served upon him, and for a protective order pursuant to CPLR 3103 blocking the taking of his deposition in this action, and further blocking the disclosure of investigative reports, notes, and materials, and granting a stay of discovery. The plaintiffs cross move for an order pursuant to CPLR 2308 (b) holding the nonparty witness in contempt of court for disobeying the subpoena duces tecum, for an order requiring him to appear for a deposition; for an order requiring him to pay the court reporter costs associated with the first deposition; for an order pursuant to 22 NYCRR § 130-1.1 for sanctions against him and his counsel; and for an order denying his amended motion dated December 22, 2008. Each opposes the motion of the other. This Court has carefully reviewed and considered all of the papers submitted with respect to the motion and cross motion.

The Deputy County Attorney for Nassau County, the attorney for the defendants in an action pending in the United States District Court, Eastern District of New York under Docket number CV-07-2032 (JFB) (WDW) states, in an affirmation dated December 19, 2008, the underlying matter involves a former Nassau County Corrections Officer. The Deputy County Attorney states an investigation into the plaintiffs Workers Compensation claim was assigned to the nonparty witness, who is affiliated with the Nassau County Attorney's Office, and it expanded to involve allegations regarding the plaintiffs General Municipal Law § 207 (c) and job arbitration proceedings. The Deputy County Attorney points out the nonparty witness was in contact with a named defendant in the instant action in connection with that investigation, but not in contact with the codefendants here. The Deputy County Attorney notes that investigation is open and ongoing, and the nonparty witness is scheduled to testify soon at the plaintiffs job arbitration proceeding, and the plaintiff either has not yet testified or has not completed his testimony in that proceeding. The Deputy County Attorney remarks there is no provision for depositions to be held in arbitration proceedings, and pursuant to CPLR § 2404 and 22 NYCRR 202.7 (b), this affirmant contacted plaintiffs’ counsel, who issued the subpoena duces tecum, and requested it be withdrawn. The Deputy County Attorney states the grounds for the request were an improper attempt to obtain disclosure of the nonparty witness' anticipated testimony and investigative materials for use in the arbitration proceeding, and the deposition would be duplicative since the nonparty witness would soon testify at that arbitration proceeding. The Deputy County Attorney explains the investigation by the nonparty witness is incomplete, disclosure now would hamper further investigation, investigation is attorney work product because it was initiated by the Nassau County Attorney's Office in connection with the plaintiffs’ claims, and the Nassau County Attorney's Office offered to produce the nonparty witness here following completion of his testimony in the arbitration. The Deputy County Attorney adds a copy of the nonparty witness' testimony at the arbitration proceeding could be furnished to plaintiffs’ counsel, and obviate additional deposition testimony. The Deputy County Attorney submits the plaintiff would be placed at an unfair advantage in the Workers Compensation and arbitration proceedings if he is permitted to ascertain details of the nonparty witness' ongoing investigation. The Deputy County Attorney avers the investigation is privileged, and its release now could compromise the probe and prejudice Nassau County while the plaintiffs would suffer no prejudice by waiting until the nonparty witness testifies at the arbitration proceeding.

A New York Divorce Lawyer said the plaintiffs’ attorney states, in an affirmation dated January 20, 2009, in opposition to the amended third party motion by the nonparty witness, and in support of the plaintiffs cross motion, the contact with the Deputy County Attorney for Nassau County with regard to the subpoena. The plaintiffs’ attorney asserts the opposing counsel did not cite nor suggest any law which would require withdrawing the subpoena duces tecum served upon the nonparty witness. The plaintiffs’ attorney points out the Deputy County Attorney served upon plaintiffs’ counsel a motion to quash that subpoena without a return date, and an unsigned good faith affirmation. The plaintiffs’ attorney asserts he sent the Deputy County Attorney an email specifying the numerous deficiencies in the motion, and reminding the Deputy County Attorney the nonparty witness' failure to appear would be a violation. The plaintiffs’ attorney contends the instant motion by the nonparty witness is defective without any legal basis, and there is no temporary restraining order suspending the validity of the subpoena duces tecum served upon the nonparty witness. The plaintiffs’ attorney indicates he appeared with court reporter on December 22, 2008 for the deposition of the nonparty witness, but neither he nor his attorney appeared there, rather about an hour before the deposition was to start, this affirmant received an amended notice of motion. The plaintiffs’ attorney noted the nonparty witness' failure to appear on the record, and concluded the deposition. The plaintiffs’ attorney states he received a copy of the Deputy County Attorney's December 19, 2008 good faith affirmation. The plaintiffs’ attorney avers the nonparty witness is in contempt of court, and there is no legal justification for his failure to appear at the deposition. The plaintiffs’ attorney contends the motion of the nonparty witness must be denied, and the nonparty witness and the Deputy County Attorney be sanctioned for making a frivolous motion where their conduct cannot be considered a good faith effort to resolve the dispute.

A Staten Island Family Lawyer said the CPLR 2304 provides: A motion to quash, fix conditions or modify a subpoena shall be made promptly in the court in which the subpoena is returnable. If the subpoena is not returnable in a court, a request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made in the supreme court; except that such motion with respect to a child support subpoena issued pursuant to section one hundred eleven-p of the social services law shall be made to a judge of the family court or the supreme court. Reasonable conditions may be imposed upon the granting or denial of a motion to quash or modify.

A Queens Family Lawyer said the CPLR 3103 (a) provides: Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.

CPLR 2308 (b)(1) provides: Unless otherwise provided, if a person fails to comply with a subpoena which is not returnable in a court, the issuer or the person on whose behalf the subpoena was issued may move in the supreme court to compel compliance. If the court finds that the subpoena was authorized, it shall order compliance and may impose costs not exceeding fifty dollars. A subpoenaed person shall also be liable to the person on whose behalf the subpoena was issued for a penalty not exceeding fifty dollars and damages sustained by reason of the failure to comply. A court may issue a warrant directing a sheriff to bring the witness before the person or body requiring his appearance. If a person so subpoenaed attends or is brought before such person or body, but refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book, paper or other thing which he was directed to produce by the subpoena, or to subscribe his deposition after it has been correctly reduced to writing, the court, upon proof by affidavit, may issue a warrant directed to the sheriff of the county where the person is, committing him to jail, there to remain until he submits to do the act which he was so required to do or is discharged according to law. Such a warrant of commitment shall specify particularly the cause of the commitment and, if the witness is committed for refusing to answer a question, the question shall be inserted in the warrant.
22 NYCRR § 130-1.1 (a) provides: The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Part. This Part shall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under Article 3, 7 or 8 of the Family Court Act.

22 NYCRR § 130-1.1 (c) provides: For purposes of this Part, conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.

The Court finds the nonparty witness has met his burden for an order pursuant to CPLR 2304 quashing the subpoena duces tecum served upon him, and for a protective order pursuant to CPLR 3103 blocking the taking of his deposition in this action, and further blocking the disclosure of investigative reports, notes, and materials, and granting a stay of discovery as requested in the moving papers. The Court determines the plaintiff has not met the burdens for an order pursuant to CPLR 2308 (b) holding the nonparty witness in contempt of court for disobeying the subpoena duces tecum, for an order requiring him to appear for a deposition; for an order requiring him to pay the court reporter costs associated with the first deposition; for an order pursuant to 22 NYCRR § 130-1.1 for sanctions against him and his counsel; and for an order denying his amended motion dated December 22, 2008. The conduct of the nonparty witness and the Deputy County Attorney for Nassau County is not frivolous, as a matter of law.
Accordingly, the motion is granted, and the cross motion is denied.

If you are involved in a similar case, seek the help of a Nassau Family Attorney and Nassau Abuse and Neglect Attorney at Stephen Bilkis and Associates.

Defendants Seek Summary Judgment Pursuant to CPLR 3212

March 19, 2015,

A New York Family Lawyer said in this family case, the plaintiff in this action seeks to recover damages for medical malpractice and lack of informed consent. She underwent gastric bypass surgery at a hospital by the defendant doctor on July 23, 2008 and she was discharged on July 28, 2008. On the morning of July 29, 2008, she was transported to another hospital via ambulance because she was suffering from severe abdominal pain. She was treated there for eight hours. While there, she was examined and tests were conducted including a CT scan of her abdomen.

A bariatric surgeon conducted a surgical consult via telephone. His primary differential diagnosis included post-operative pain along with anxiety of recent surgery, some form of intra-abdominal process, infection or inflammation. The possibility of an anastomotic leak was also considered.

A New York Divorce lawyer said that While at Good Samaritan, the plaintiff developed a fever and her abdominal pain worsened. Her temperature went from normal to 102.6; her pulse rate increased to 130; and, her oxygen saturation dropped from 96% to 90%. Upon determining that a possible bowel perforation could not be ruled out, the doctor conferred with another and together they concluded that in light of her stable condition and the doctor's history of treating her, the doctor should be transferred to NUMC via ambulance.

The plaintiff arrived at the hospital at 8:10 p.m. on July 29th hemo-dynamically stable. A doctor attended to her in the Emergency Room. Upon admission, she had complaints of fever, sweating, chest pressure, shortness of breath and a productive cough with brown phlegm. She was in mild respiratory distress and had abdominal tenderness. Because her oxygen saturation was 84% by pulse oximetry, she was given 100% oxygen via non-rebreather mask and her oxygen saturation improved to 90%. The plaintiff was noted to be in acute distress. Her incision from the bypass procedure had serious drainage and her breath sounds bilaterally were decreased in the lower fields. Her abdomen was soft, diffuse, distended and tender in the lower part of the wound.

A Brooklyn Family Lawyer said an anastomotic leak was confirmed via an upper GI series which was completed by 2:05 a.m. on July 30th. The tests showed free extravasation of oral contrast from the proximal gastric bypass anastomotic site. Since the plaintiff had reported that the pain had started in the morning of the 29th, based upon the plaintiff's symptomatology and his doctor's training, the doctor opined that the anastomotic leak started when the patient was at home during the morning of the 29th when she experienced a pop and abdominal pain. The plan was to continue IV fluids and antibiotic therapy, to monitor the heart rate, to perform repeat abdominal exams and to provide DVT and GI prophylaxis.

The plaintiff was returned to the operating room on July 30, 2008 at 8:00 a.m. for repair of the gastrojejunostomy leakage under general anesthesia. She underwent exploratory laparotomy, lysis of adhesions and repair of the anastomosis by the doctor with the assistance of surgical resident.

A Bronx Family Lawyer said the operative report indicates that dehiscence of the gastrojejunostomy was seen in the upper epigastric region with significant inflammation of the tissues. Cultures of the abdominal fluid were collected. After the procedure was performed, Methylene blue dye was used to test for leakage and no gross leakage was noted. A tongue of the omentum was placed over the repair and secured.

Complications developed and the plaintiff remained at the hospital until September 17, 2008 during which time she was treated for sepsis, Adult Respiratory Syndrome and Psedomonas pneumonis. These conditions necessitated prolonged support including a tracheostomy, the need for a PIC line for IV access, percutaneous drainage of collections of intra-abdominal fluid, fungemia, bacteria, and a gastrostomy tube leak.

All of the defendants seek summary judgment dismissing the complaint against them.
"On a motion for summary judgment pursuant to CPLR §3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference.

"The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury." "Thus, [o]n a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. "Once a defendant physician has made such a showing, the burden shifts to the plaintiff to 'submit evidentiary facts or materials to rebut the prima facie showing by the defendant so as to demonstrate the existence of a triable issue of fact.' "

"General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat a defendant's motion for summary judgment. "In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party." A plaintiff's expert must, address all of the pivotal facts relied upon by the defendant's expert in order to establish the existence of a material issue of fact.

A hospital cannot be held vicariously liable for the malpractice of a private attending doctor. In addition, "[w]hen supervised medical personnel are not exercising their independent medical judgment, they cannot be held liable for medical malpractice unless the directions from the supervising superior or doctor so greatly deviates from normal medical practice that they should be held liable for failing to intervene."

“To establish a cause of action [to recover damages] for malpractice based on lack of informed consent, plaintiff must prove: (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury.'

In sum, the doctor advised the plaintiff of the risks attendant to the surgery, in particular the possibility of a leak at the site of the anastomosis as well as an infection and the possibility of dehiscence of the wound and a breakdown of the connection between the small intestine and the stomach that was formed during the surgery. He also notes that a battery of tests were done to establish that the plaintiff was a proper candidate for the surgery and a consent form was executed, as was a risk advisory sheet and informative questionnaire. T

"An anastomotic leak under the circumstances of this case is a surgical emergency, and time is of the essence. Every hour that passes with such a leak makes the recovery for the patient that much harder. . . . [T]he delays here were significant factors in causing significant complications in this patient, including sepsis, Adult Respiratory Syndrome, Pseudomonas pneumonis, the need for prolonged respiratory support, the need for PIC lines for IV access, percutaneous drainage of intra-abdominal fluid collections, fungemia, bacteremia, the need for a tracheostomy, a gastrostomy tube leak, and hospitalization for about two and a half months until discharge on September 27, 2008."

The opines that the defendants departed from good and accepted medical practice by delaying the identification and treatment of gastrojejunal anastamotic leak thereby causing significant complications, all of which could have been avoided.

The plaintiff has not established any issues of fact with respect to her claim of lack of informed consent. That claim is dismissed as against all defendants.

The Court ORDERED, that the defendants' motions for summary are granted and the complaint against them is dismissed.

Experienced lawyers like our Nassau County Family Attorneys here in Stephen Bilkis and Associates should be consulted on family issues. By reason of the years of their practice and experiences, they will be able to render a competent advice. In case of irreconcilable differences between spouses, you can also consult our Nassau County Divorce Lawyers.

Court Discusses Petition for Tax Exemption

March 18, 2015,

A New York Family Lawyer said that, the Plaintiff, claims that it is entitled to a real property tax exemption pursuant to Real Property Tax Law ["R.P.T.L."] §§ 420(a),(b)1 and 4622 for the years 2004 and 2005 for its property located at 32 College Road, Monsey, New York within the Town of Ramapo. The trial of this matter took place on February 15, 2006 during which witnesses testified on behalf of the Congregation and the Defendants. After a careful review the trial record and exhibits and the excellent post trial memoranda of law including findings of fact and conclusions of law submitted by the parties the Court is now prepared to render its Decision.
The Congregation was organized as a religious corporation, the Certificate of Incorporation5 of which provides" SECOND: The purposes for which this corporation is formed are. To conduct and maintain a House of Worship in accordance with orthodox Jewish custom and traditions to promote the religious, intellectual, moral and social welfare among its members and their families, to promote and increase interest in the study of the Torah, by maintaining classes for the teaching of the customs, traditions and mode of worship of the orthodox Jewish faith. FIFTH: The principal place of worship of the corporation shall be located at 32 College Road, Monsey, New York".

Unlike other cases in which this Court has ruled upon the requests of religious and charitable corporations for real property tax exemptions pursuant to R.P.T.L. § 420(a)6 [

A New York Divorce Lawyer said first, the Congregation operates a synagogue, a mikvah, a shul and provides a residence for its Rabbi and his family in the subject property7 and has never filed development site plans nor applied for or obtained building permits and a Certificate of Occupancy for anything other than" a single family dwelling with a finished basement"8. The Congregation was served with a Notice of Violation9 dated June 29, 2004 ["the Violation"]"for use other than as a single-family residence"10 and has not responded to the Violation by applying for a "building permit for work relating to the construction or renovations for a synagogue" and "site plan approval for a synagogue"11. The use of the subject property in violation of zoning ordinances is a complete defense to the Congregation's application for a tax exemption.

A Westchester County Family Lawyer said second, the Congregation is "double dipping" in that it rents the upper level of the subject property to Rabbi for $1,780.00 a month, $1,617.00 of which is paid by the Section 8 Housing Voucher Program12, the balance of which, $163.00, was supposed to have been paid by Rabbi to the Congregation but was only paid" Maybe around five, six times" in three years13. The Congregation cannot seek two governmental subsidies for the same property by" requesting a tax exemption and then receiving Section 8 rent for the exempt property"14. In addition, the Congregation appears to be making a profit from this arrangement of " $381.68/month or $4,580.16 a year"15 .

Third, in its Complaints16 the Congregation relied exclusively upon R.P.T.L. §§ 420(a),(b) as the basis for its request for a tax exemption for the subject property. Nonetheless, at trial the Congregation made application "to conform the pleadings to the proof” by allowing it to seek tax exemption under R.P.T.L. § 462 ". That request is denied.

Without standing to seek a real property tax exemption this Court need not address the merits of whether or not the Congregation meets, in whole or in part, the requirements of R.P.T.L. §§ 420(a),(b)17 and 46218. Notwithstanding Defendants' request for an advisory opinion. "We look to this Court for guidance in handling the various permutations arising from this ever-expanding area of tax exemptions", the issue of standing [which Defendants themselves properly raised is a threshold issue which must be addressed before considering the merits of the Congregation's request for a tax exemption.

In its Complaints 63 the Congregation relied exclusively upon R.P.T.L. §§ 420(a),(b) as the basis for its request for a 100% tax exemption for the subject property. Nonetheless, at trial the Congregation made application “to conform the pleadings to the proof " by allowing it to seek tax exemption under R.P.T.L. § 462 ". That request is denied.

Assuming, arguendo, that the Congregation's application had been granted it, nevertheless, failed to file an application in 2005 for a tax exemption pursuant to R.P.T.L. § 462 and would be barred from relying upon that provision herein.

Based upon the foregoing the Congregation's Complaints for 2004 and 2005 are dismissed and its application for a tax exemption for the subject property pursuant to R.P.T.L. §§ 420(a),(b) & 462 is denied.

Assuming, arguendo, that the Congregation meets the first requirement of being organized exclusively for religious purposes it has failed to meet the second requirement because the upper portion of the subject property is not primarily used for a tax exempt religious purpose. In light of the testimony regarding the hours that the Rabbi is downstairs in the soul performing various services for the Congregation and its congregants, the Congregation cannot argue that the residence is used for anything other than the family residence. The Congregation has submitted no credible evidence that religious activity takes place upstairs in the Rabbi's residence. It is clear that the primary use of the upper level of the subject property is as a residence. The fact that it is used for residential purposes by the choir director, who provides liturgical music at all weekend services and sacramental ceremonies, and occasionally by visiting clergy, is plainly incidental to the religious purpose of the building.
If you are facing a similar case, seek the help of a Nassau Order of Protection Attorney and Nassau Family Attorney at Stephen Bilkis and Associates.

Court Discusses Mother's Liability for Counsel Fees

March 16, 2015,

A New York Family Lawyer said that, on May 19, 1969, the defendant and his former wife entered into a separation agreement which provided for the support of the parties' children. By Mexican decree dated May 31, 1969, the defendant and his former wife were divorced. Said decree incorporated the aforementioned separation agreement.

On January 21, 1977, defendant's former wife commenced a proceeding in the Family Court, Nassau County, seeking an increase in child support payments on behalf of the defendant's children. By order of the Family Court, an increase in support payments on behalf of the child was directed and denied relief to the child, suggesting that he would have to bring a proceeding on his own against his father since he had attained the age of 18 years.

A New York Divorce Lawyer said that, the plaintiff was retained to represent him in connection with a petition for support under Article 4 of the Family Court Act. Thereafter, the Honorable Judge of the Family Court, Nassau County, rendered a decision granting the child an order of support in which he was awarded $30 per week in support. The aforesaid order denied plaintiff counsel fees in connection with the Family Court proceeding on the ground that the Court had no authority to grant said fees. The Court held "The petitioner is attending college on a full-time basis and is not an emancipated child and the mother is employed but her income is insufficient to meet the needs of herself, her daughter and son she is not in a financial position to provide support or any portion of the support required by her son. Plaintiff then commenced this action seeking counsel fees from the defendant based upon the fact that the legal services rendered to the son were necessaries for which the father was liable.

A Manhattan Family Lawyer said it has long since been considered by the courts of this state that necessaries are not limited to food, clothing, habitation, and education, but include, among other things, the right to counsel. Legal services rendered to a wife or minor child are, as a matter of law, necessaries for which a father may be held liable. Family Court opinions have taken the view that legal services rendered to a mother in a child support case are necessaries for the children for which a father is liable.

A New York City Family Lawyer said furthermore, it has been held that legal services rendered on behalf of children in an action brought to secure support from their father in excess of that provided pursuant to a foreign decree of divorce constitute necessaries for which the father is liable. By virtue of his having attained the age of 18 years old, plaintiff's client was compelled to commence his own support proceeding.

As he was no longer a minor within the meaning of Domestic Relations Law Sec. 2, petitioner was precluded from a remedy against his father under the support proceeding brought by his mother. Yet, as a legal dependent, for whose support and maintenance defendant is liable (Domestic Relations Law Sec. 32(2), 33(4), having been compelled to initiate proceedings against his father, defendant's son has been placed in a position of uncertainty as to responsibility for payment of the claim of attorney's fees.

In the defendant's view the "non-infancy" (petitioner being older than 18 years) of the child relieves the father of liability to persons who have supplied necessaries such as legal services. Defendant contends that as the child was not an infant during the support proceedings the Kern and Winston decisions, Supra, are inapplicable insofar as they hold a father liable for legal services.

Upon examination of the aforementioned cases, this Court does not concur with defendant's reasoning. While one attains majority at the age of 18 (Domestic Relations Law Sec. 2), a father is nevertheless obliged to support a child under 21. (Domestic Relations Law 32(2) and 33(4); Family Court Act Sec. 413; and Social Services Law Sec. 101.) Since the obligation includes liability for necessaries, the present action for legal fees is proper. Although the Kern and Winston decisions, Supra, dealt with infants under 18, these cases are germane insofar as they hold that legal services rendered in connection with court proceedings are necessaries. This conclusion is equally valid in cases of proceedings, as herein, brought by non-infant dependents. The confusion occasioned by the reduction of the age of majority by an amendment of the Domestic Relations Law ought not to alter the characterization of these services as necessaries.

A divorced father's responsibility to support a child until age of majority has been held not to be terminated by a subsequent statute reducing the age of majority from 21 to 18 years. The Court declared that the separation agreement continue in full force and effect in this regard observing that statutory enactments generally operate prospectively unless there is a clear legislative intent to make them act retrospectively. The Court referred to Sec. 8 of the amended statute which provides that it "shall not be construed to alter, change, affect, impair or defeat any rights, obligations or interests heretofore accrued, incurred or conferred prior to the effective date of this act."

It should be noted that the parties stipulated that "the plaintiff's client, David Barclay, filed a petition for support in the Family Court, Nassau County, under Article 4 of the Family Court Act, in which the defendant herein was named as a respondent." It appears therefore that the reasoning of the Winston case, Supra, remains applicable inasmuch as at Page 62, 84 Misc.2d, Page 996, 374 N.Y.S.2d, we find the following statement: "the cost of providing legal services for a child under Article 4 is a necessary for which a father is primarily liable." Though David may not be deemed a "child" for many purposes, in view of his status as a dependent the defendant's liability for necessaries is apparent.

It has been held that a child support proceeding is of legal interest only to the children who are without means to pay counsel. In that case the Court recognized that the award of counsel fees is authorized in petitions for child support by a divorced wife and indicated that the proceeding is to be viewed as benefitting the child. It further concluded that a counsel fee is awarded for the sake of the child. It would appear anomalous if such fees could be awarded to the child whose action is maintained by the custodian-mother (Domestic Relations Law Sec. 237(b); Family Court Act Sec. 438), but the child compelled to maintain his own action could not recover counsel fees.

The duty to support and maintain a child is recognized as resting upon both parents. As part of that duty it is their obligation to provide necessaries; a parent who has that duty is liable to persons who supply necessaries such as legal services. As a Court may apportion the costs of support between the parents according to their respective means (Family Court Act Sec. 414) the mother's liability for the portion of counsel fees has been placed in issue.

In a support proceeding by a former wife, brought for her children, the Court may require the father to pay counsel fees. Since the award of fees in a support proceeding is an exception to the usual rule that the parties pay their own counsel, the exception is justifiable only if the ex-wife's are insufficient. The Family Court has held that neither the mother nor child, David, has sufficient funds to meet the child’s needs, nor this Court will not disturb that finding.
The unemancipated child without means who has been provided with necessaries may reasonably look to his father to bear the full responsibility for the costs thereof without regard to the fact that free legal services May be available to indigents. Counsel for defendant has provided this Court with no authority for his contention that paid legal services are not necessaries by virtue of the possible availability of such services from the Legal Aid Society, and this Court seriously questions whether the mere potentiality of legal services from some other source changes the character of such services, rather the contrary would appear to be an appropriate interpretation of the reason for extending "free legal services."

The courts have long since placed upon the legal profession a moral duty to provide "counsel" to a person who is indigent where to deprive that person of legal counsel would be tantamount to depriving the indigent of a legal right. See Governor's message to the Legislature, Chapter 878, Laws of 1965, July 16, 1965, and the Cannons of Professional Responsibility EC 2-25. Certainly if such a moral obligation rests upon the legal profession the offer of such services to an indigent must under every view be considered "a necessary," rather than the contrary.

The legal profession in this state has for years long past offered these services "pro bono publico," both in civil and criminal cases. The number of lawyers who have served as "law guardians" or as counsel to children in the Family Courts and the criminal courts of our state are so numerous that they can be counted no more easily than the biblical "stars of heavens," but to state that the dispensing of such services to the child relieves the parent of the obligation to pay for the reasonable value of same is in this Court's opinion without merit. There is no evidence before the Court other than the mere assertion that the Legal Aid Society exists to provide law services to indigents that the Society would in fact have become involved in this type of proceeding or that the defendant's son is an appropriate candidate to receive such services.
The parties have stipulated that the following legal services have been rendered by plaintiff on behalf of his client, in connection with the Family Court proceedings which forms the basis of the instant litigation: (a) Preparation for hearing, compilation and review of financial matter, research of law and preparation of papers submitted in connection with defendant's attorney's motion to dismiss the Family Court proceeding, review of correspondence and dictation of correspondence to the judge.

Counsel for the defendant's son has successfully represented his client's interest, and though this Court under other circumstances might evaluate the economic remuneration deserved by plaintiff herein at a sum greater than that sought by the plaintiff in this action, the Court is limited to granting judgment to the plaintiff against the defendant in the sum of $1,000 plus costs.
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Petitioner Contends Several Flaws with Court Trial

March 14, 2015,

A New York Family Lawyer said the plaintiff is an experienced police informant, met the defendant towards the end of December, 1997 when they were both incarcerated at the Nassau County Jail. At the time that they met, the police informant was charged with the felony of scheme to defraud in the first degree and misdemeanor criminal contempt charges. The two men became friends in the correctional institution, and in March of 1998 defendant confided to him that he had secreted monies from his mother's estate. Defendant told him in substance that he had been held in contempt by the Surrogate for withholding estate monies for which he had not made a proper accounting to the court. Defendant also indicated that he was represented by counsel in connection with the civil contempt proceeding. Defendant stated that he considered his brothers to be partially responsible for his incarceration, that he hated both of his brothers, and that he wanted to have one of his brothers killed. Defendant also expressed a desire to harm the Surrogate. Finally, defendant spoke of a woman to whom he had entrusted $45,000 who had squandered the money. He was concerned about this woman because she was in possession of certain documents of his which would prove damaging if they were obtained by the IRS. The police informant told defendant that he knew someone who could "take care" of his brother for him.

A New York Divorce Lawyer said that, on March 18, 1998 the police informant wrote a letter to Surrogate informing him of defendant’s intentions and offering to be of assistance to law enforcement. Surrogate forwarded the letter to the Nassau County District Attorney's office. In response to defendant’s letter, ADA and the investigator of the Nassau County District Attorney's Office arranged to meet with him on March 24. At the meeting Ms. Meister questioned Miller about the matters mentioned in his letter to Surrogate took notes, and told him she would get back to him shortly as to whether he would be accepted for cooperation with the District Attorney's office. On June 3, defendant again met with the police informant and stated that he wanted to "rearrange" the hit and to have the police informant contact and act as "the middleman." Defendant also indicated that he had a $2,000 check which was available as a down payment on the contract. An indictment was filed against defendant on June 11, 1998.
Defendant contends that the grand jury proceeding was defective because the testimony of the police informant, a government informant, was elicited largely through leading questions. Whether a witness may be examined by leading questions in the grand jury is within the discretion of the district attorney as the law advisor to the grand jury. Since he was an informant, he was neither hostile to the prosecution nor reluctant to testify. However that may be, testimony concerning preliminary matters may be elicited through leading questions in order to expedite the proceedings. To the extent that his testimony in the grand jury was of a preliminary nature to show how defendant was introduced to the detective, it was not an abuse of discretion for the prosecutor to use leading questions to elicit this testimony.

A Brooklyn Family Lawyer said that defendant also contends that the prosecutor engaged in leading questions concerning the subject of the purported renunciation of the contract to kill defendant's brother. The grand jury minutes make clear that when this subject was first introduced, the prosecutor expected a negative response to the question, "Was it your understanding that he had permanently decided to cancel plans to kill his brother” Minutes at 14. That the witness surprised the prosecutor by answering "yes" to this question belies any claim that defendant was prejudiced because the question suggested a particular answer. Subsequent questioning merely clarified the witness' position on the issue and was not of a leading nature.

A Bronx Family Lawyer said the court also notes with respect to the prosecutor's manner of examining the police informant that criminal charges had been pending against the witness. Despite the fact that the police informant had recently entered a guilty plea, there remained the possibility that the plea could be withdrawn. Thus, the prosecutor was entitled to utilize leading questions to control the witness' testimony and avoid the danger of conferring immunity.

A Nassau Abuse and Neglect Lawyer said that, defendant next argues that the grand jury proceeding was defective because the prosecutor failed to present evidence of the police informant’s prior convictions to the grand jury. The prosecutor owes a duty of fair dealing to the accused in the grand jury. However, a grand jury proceeding is not an adversary proceeding, and the People are not obligated to present all evidence in their possession which is favorable to the accused. Thus, the prosecutor is not obligated to impeach a witness with prior criminal convictions when the prosecutor believes that the witness' testimony is truthful. Nor was it necessary to show the precise terms of his cooperation agreement or specifically charge the grand jury that he is expected to receive a benefit from his testimony. In any event, the court notes that the grand jury was advised as to the nature of his pending charges, as well as the fact that he was currently incarcerated.

With respect to the defendant, evidence was presented to the grand jury that defendant had been found to be in civil contempt by the Nassau County Surrogate's Court and was currently incarcerated. The court has determined that appropriate limiting instructions were given to the grand jurors. The instructions were to the effect that they could consider this evidence only as bearing on defendant's motive for soliciting the undercover to assault or kill defendant's brother and opportunity to contact the undercover from the Nassau County jail. The grand jurors were instructed not to consider this evidence as showing a propensity or disposition to commit the crimes charged.

Finally, contrary to defendant's contention, the grand jurors had reasonable cause to believe that defendant had not renounced the plan to kill his brother. As stated in the court's prior decision, the tape recorded conversations make clear that defendant’s fear of detection was, at least in part, his motive to call off the criminal venture. Accordingly, that branch of defendant's motion which seeks to dismiss the indictment is denied.

During the course of the hearing, defendant moved to preclude certain statements made to the police informant on the ground that the statements varied from the "sum and substance" of the statements as to which notice had been given pursuant to CPL Sec. 710.30. The issue of whether the challenged statements were actually made is beyond the scope of this hearing and must await resolution until the trial of the action. CPL Sec. 710.30(1) provides that whenever the People intend to offer at a trial evidence of a statement made by defendant to a "public servant," which statement if involuntarily made would render the evidence thereof suppressible, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered. Defendant argues that since a confidential informant is a state agent, he should be considered a "public servant" for purposes of the CPL Sec. 710.30 notice requirement.

The court notes at the outset that it is unclear whether the People are required to give notice pursuant to CPL Sec. 710.30 as to statements made to confidential informants. While it appears that CPL Sec. 710.30 notice must be served in the Second Department, the First Department has held that confidential informants are not public servants, so that notice is not required. While the question of whether informants are "public servants" is intriguing, the court need not answer it to resolve the current motion.

Defendant moves to suppress all of the statements which he made to the police informant and the detective on the theory that the police informant was acting as an agent of the police, and that all of the statements to them were taken in violation of defendant's right to counsel because counsel had been assigned in the civil contempt proceeding. The People concede that the police informant became a state agent upon the issuance of a formal cooperation letter on March 26, 1998. However, defendant, based upon the fact that he had previously provided information to the federal government, argues that he was a state agent from the beginning of his encounter with defendant. Clearly the fact that an informant has previously provided information on other defendants and received a benefit for his cooperation is relevant to the question of whether an agency relationship has been established. However, since there is absolutely no evidence that the police or District Attorney's office were aware of the police informant’s conversations with defendant until after they received the letter from Judge no agency relationship could have arisen before that time.

In arguing that his statements to the parties were taken in violation of his right to counsel, defendant seeks to extend the right to counsel rules which apply when a defendant has retained counsel in a criminal proceeding. After the right to counsel has indelibly attached by the actual appearance of an attorney representing the defendant in a criminal case, the police are prohibited from interrogating the individual concerning a new case in the absence of his attorney in two distinct situations. The first of these is where the two criminal matters are so closely related transactionally, or in space or time, that questioning on the unrepresented matter would all but inevitably elicit incriminating statements regarding the matter in which there had been an entry of counsel. A second line of precedent involves interrogations concerning crimes less intimately connected, but where the police were aware that the defendant was actually represented by an attorney in one of the matters. In both situations, the right to counsel which is recognized on the new case is a "derivative right to counsel," that is it is derived from the attorney's appearance in the prior related, criminal case. Where the new case is "unrelated," defendant is free to waive his rights in the absence of counsel.

In the case at bar, defendant asserts a derivative right to counsel based on his representation by counsel in the civil contempt proceeding. A recent case from the Appellate Division, Third Department indicates that there is no such derivative right to counsel based on an attorney's appearance in a civil case. Defendant’s claim to a derivative right to counsel is far weaker than the claim asserted in Kent. Inasmuch as defendant is not being prosecuted for embezzlement of estate assets, he cannot claim that the criminal solicitation prosecution arises out of the same matrix as the civil contempt proceeding. That his motivation for soliciting his brother's murder was revenge for the contempt citation does not render the two proceedings "related" within the meaning of Bing. The purpose of a civil contempt proceeding is to coerce compliance with the court's mandate. Manifestly, the purpose of a criminal action is to secure a criminal conviction and accord punishment to the accused. As the Third Department accurately reasoned in Kent, the disparate forms of relief sought in the two actions show that the present criminal prosecution is unrelated to the prior civil contempt proceeding. Thus, his representation by counsel in the civil contempt matter does not give rise to a derivative right to counsel in these subsequent criminal proceedings.

Even, assuming arguendo, that representation in civil contempt proceedings could give rise to a derivative right to counsel, the new crime in progress exception would defeat defendant's asserted right to counsel herein. Neither the Federal nor the State constitutional guarantee of the right to counsel includes the right to have counsel present when a criminal enterprise is being planned or executed. Defendant's statements to the police informant constitute the planning and preparation of his solicitation of detective to harm defendant’s brother. Defendant's statements to the detective constitute the actual performance of the criminal solicitation. All of these statements come within the new crime exception to any purported right to counsel.
Nor was there any Miranda violation. The questioning of an inmate in a correctional institution is not custodial interrogation unless it entails added constraint that would lead the inmate reasonably to believe that there has been a restriction of his freedom over and above that of ordinary confinement in a correctional facility. Ultimately, defendant's challenge to the admissibility of the statements he made to them boils down to the question of whether the investigation techniques were so fundamentally unfair as to violate due process of law. As with any undercover operation, a measure of guile and deception was utilized. Quite obviously, defendant was not told that the police informant was an informant or that "Billy" was really a detective. However, the stratagem involved no risk that defendant would falsely incriminate himself. Defendant claims that his statements were somehow involuntary because he was "vulnerable" to the police informant’s suggestion that he contact. Granted, defendant had been in jail for over a year and was desperate to extricate himself from his predicament. However, as does any contemnor, he held the keys to his own freedom. Despite his incarceration, he had the power to purge his contempt and obtain his release by performing the acts he had been directed to perform, that is, making a proper accounting to the Surrogate's Court. See Judiciary Law Sec. 775. That he made the deliberate choice to pursue criminal means in an attempt to escape the consequences of his contempt of court did not render him vulnerable and does not make the ensuing statements involuntary. Accordingly, that branch of the motion which is to suppress statements is in all respects denied.

Accordingly, the court held that the defendant's motion to suppress statements is denied. The motion to re-inspect the grand jury minutes is granted, but upon re-inspection the motion to dismiss the indictment is denied.

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