Court Review Social Service Law

July 22, 2015,

A New York Family Lawyer said that, this termination of parental rights (TPR) proceeding was brought pursuant to Social Service Law (SSL) section 384–b by Petitioner against respondent in connection to her child, age four. The petition, filed August 24, 2009, seeks to terminate the parental rights of RM on the grounds of mental illness.1 The Court held a fact finding hearing on September 22, 2010, October 18, 2010, December 21, 2010, January 18, 2011, January 20, 2011, January 21, 2011, February 4, 2011, March 4, 2011 and April 26, 2011. On June 27, 2011, counsel delivered oral summations with supplemental written summations submitted to the Court on July 8, 2011.

A New York Divorce Lawyer said that, petitioner presented the testimony of one (1) witness: a qualified expert in the field of clinical psychology. Respondent presented the testimony of two (2) witnesses: a qualified expert in the field of forensic psychology, and RM who testified on her own behalf. Petitioner also submitted for judicial notice the following court orders, decisions and documents/photographs, in connection with the underlying child protective proceeding and prior termination of parental rights proceeding brought against RM as to her child, who was freed for adoption by order dated June 24, 2008.

The underlying child protective proceeding in this case involves the brutal murder of the child, by RM's ex-paramour, on November 21, 2001. A severe & repeated abuse petition, brought on behalf of the deceased child's surviving half-sibling was filed against RM and her ex-paramour, pursuant to Article Ten of the Family Court Act. Thereafter, a finding of severe & repeated abuse by clear and convincing evidence was entered against them both on June 10, 2003.

A Brooklyn Family Lawyer said that subsequently, a termination of parental rights proceeding was brought against RM as to her surviving child, on the grounds of repeated & severe abuse and permanent neglect. In two (2) separate decisions, dated December 26, 2006 and June 24, 2008 respectively, findings were entered against RM on each ground and the child was freed for adoption.

On February 20, 2007, third child, who is the subject of this proceeding, was born and placed directly from the hospital into foster care. A finding of derivative abuse was entered against RM as to the child December 8, 2008.The instant petition seeking to terminate RM's parental rights on the grounds of mental illness was filed eight (8) months later on August 24, 2009.
It is settled law that in a proceeding to terminate parental rights on the grounds of mental illness, the petitioner bears the burden of demonstrating by clear and convincing evidence, that the parent is presently, and for the foreseeable future, unable by reason of mental illness, to provide adequate care for a child. The statute explicitly prescribes certain procedural requirements to assist the court in determining whether a mental illness condition exists. Specifically, the court is required to order the parent to submit to an examination by a qualified psychiatrist or psychologist as well as take the testimony of the qualified medical examiner at trial on the question of not only whether the parent suffers from a “mental illness” but also whether such mental illness impairs the parent's present and future ability to care for his/her child.

A Bronx Family Lawyer said the clear and convincing standard of proof in a TPR proceeding is applicable as to each of the elements present in a case involving allegations of mental illness. Petitioner must first establish that the parent suffers from a mental illness as that term is defined in the statute. SSL § 384–b (6)(a). Next, petitioner must establish that the mental illness impairs the parent's ability to provide appropriate care to his/her child. Lastly, there must be sufficient proof presented to establish that the impairment caused by the diagnosed mental illness not only affects the parent's present ability to properly care for his/her child but that the nature and severity of the illness is to such a degree that it renders the parent unable to adequately care for their child for the foreseeable future. As such, petitioner must present proof not only of the parent's underlying condition the medical testimony must particularize how the parent's mental illness affects her present and future ability to care for her child.

With the exception of the APA guidelines pertaining to child protective matters, including TPR proceedings, and in contrast to the practice in child child custody litigation, this court was unable to identify the use of any established or suggested published practice guidelines and parameters for conducting court-ordered examinations of parents named as respondents in TPR proceedings brought on mental health grounds. Even though there are published APA guidelines for performing forensic evaluations in TPR proceedings, this Court found few reported cases where a court specifically ordered a forensic evaluation in a TPR case brought on the grounds of mental illness that complied with the guidelines published by the APA.

More commonly, pursuant to Social Services Law section 384–b(6)(e), courts appoint a qualified psychiatrist or psychologist to conduct a court-ordered examination of a parent and direct the respondent parent to submit to the examination. Thereafter, the court receives the opinion testimony of the court appointed expert as to their findings at the TPR proceeding. Often, court-ordered examinations may consist of a one-time interview of the parent and a review of the parent's prior medical, psychiatric, and/or other relevant records, if such materials are of the kind accepted in the profession as being reliable in forming an opinion. Should a parent refuse to submit to such a court-ordered examination or fails to make him or herself available, the court appointed expert is permitted to render an opinion solely on the basis of a review of the parent's available and relevant records. SSL § 384–b(e). The court must, however, first issue an order directing the parent to submit to an examination before it is permitted to enter a finding against the parent on the basis of expert medical testimony based solely on a review of relevant records.
Recognizing there are significantly different considerations, statutory requirements, and case law governing contested child custody cases from TPR proceedings, in this Court's view there should be equally comprehensive court-ordered examinations and reports presented to the court in both types of cases. In both kinds of cases the ultimate question before the court is what is in the “child's best interest.” Both kinds of cases involve fundamental parental rights in relation to their child. In a contested child custody case, the right at stake is the right to physical child custody and final decision-making as to one's child. It is a right that, even if denied in a particular litigation, can be modified if there is a showing of change of circumstances in the future. The standard of proof at trial in that instance is a preponderance of the evidence. In contrast, the right at stake in a TPR case is profoundly different from the loss of custodial rights. It involves the complete and final severance of all parental ties to one's child. There is also a higher standard of proof of clear and convincing evidence. Therefore, compelling reasons exist for requiring a thorough and comprehensive court-ordered examination and report in a TPR case.

Here, petitioner has failed to establish by clear and convincing evidence that RM suffers from a mental disease that renders her presently, and for the foreseeable future, unable to care for the subject child. The expert testimony provided to this Court by the court appointed psychologist and her written report in evidence fails to meet the rigorous standard which is required particularizing the harm posed to the child by the RM's mental illness.

To begin, the Court notes that despite the fact that the RM has been having unsupervised visits with the subject child twice a week for the past two (2) years, no effort was made by the doctor to assess the parent-child relationship. No collateral contacts were made by her with agency personnel or other key collaterals who have observed the visits between RM and the child. She did not conduct any parenting skills assessment or survey. This important shortcoming reflects the doctor’s mistaken understanding that her primary task was to evaluate RM's mental state and not her parental functioning. In addition to not performing any parenting skills testing or conducting any parenting surveys to assess RM's parenting strengths/weaknesses, the doctor did not conduct any psychological testing of RM. Instead,

Further, as pointed out by the doctor in his testimony, his reliance on the twenty-seven (27) records referred to in her report in formulating her expert opinion in this case is also troublesome. Although court appointed medical experts are permitted to review records not in evidence in performing court-ordered examinations in TPR proceedings, such records must be of the kind accepted in the profession as reliable in forming an opinion. Here, the doctor testified she both agreed and disagreed with some of the findings and conclusions of the records she reviewed and considered in conducting her evaluation. She did not, however, indicate specifically what records she relied on and which she rejected and her basis for doing so. Nor did she state what impact these reports had on her evaluation of RM and the expert opinion she offered as to the severity and nature of RM's mental illness and her ability to parent the subject child now and in the future.

Indeed, of the twenty-seven (27) records the doctor reviewed, many were only remotely, if at all, relevant to the issue of RM's mental illness. More than half of the records were copies of court documents such as permanency hearing reports and court reports involving the ten (10) year period of the instant child protective proceeding. It is not clear to this Court how some of these records are of the kind accepted in the profession as a reliable source for forming an opinion as to a parent's mental illness and the severity and impact of such mental disease on their ability to adequately parent a child.4 Indeed, many of the documents, which may have formed a basis for his expert opinion, included first and even secondhand hearsay information and opinions by lay persons not qualified to opine as to RM's response to the many years of out-patient mental health treatment she has received. In fact, his report even included references to records she reviewed that were subpoenaed from the NYC Administration of Human Resources pertaining to “food stamp and other benefit applications, sub-lease agreements, rent bills, and other similar materials pertaining to the respondent mother.”

In addition to the questionable expert medical evidence presented, this Court is also struck by the absence of evidence in key areas of RM's mental illness history necessary for determining the nature and severity of her mental illness and her present and future ability to adequately care for her child. For example, there was no evidence RM has ever been psychiatrically hospitalized, no evidence she suffers presently, or in the past, from any form of psychosis, and no evidence she has ever been non-compliant with mental health treatment or recalcitrant in adhering to any prescribed psychotropic medication. In fact, the doctor’s written clinical report indicates RM has been involved in out-patient mental health treatment since 2001, following the brutal death of her child Inez by her ex-paramour, and that her diagnosed Major Depressive Disorder and PTSD are in remission in response to the mental health treatment and medication she has received over the past several years.

One of petitioner's central arguments in support of the instant petition to terminate RM's parental rights on the grounds of mental illness is her role in failing to protect her child Inez from the brutal death she suffered at the hands of RM's ex-paramour and her present failure to accept full responsibility for her role in the child's murder. Petitioner maintained this is evidence of her total lack of parental understanding and empathy and confirmation of her diagnosed mental illness. In her report, the doctor concluded that RM appears to suffer from a demonstrated longstanding pattern of maladaptive personality traits, which she hypotheses, have led to significant functional impairment and contributed to the RM's prior involvement in a profoundly abusive relationship, resulting in grave harm to her children.

This Court also agrees and acknowledges that the principles of fairness and due process embedded in our laws imposes upon the court the role of gatekeeper in assuring that expert testimony is not only relevant but reliable. In this case, the court-ordered examination of RM and the expert testimony presented fails to satisfy the necessary indicia of reliability required to establish by clear and convincing evidence that RM's diagnosed mental illness renders her, by reason of mental illness, presently, and for the foreseeable future, unable to adequately care for her child. Further, no legal basis exists for requiring any less a comprehensive court-ordered examination in a TPR case brought on mental illness grounds than in a case involving a parent's right to child custody of his/her child. As such, the methodology for conducting a court-ordered examination in a TPR proceeding brought on grounds on mental illness should adhere to the guidelines published by the APA to ensure the court is provided with a comprehensive report and a thorough assessment of not only the parent's mental illness but his/her parenting and family functioning consistent with the requirements of the SSL. At a minimum, therefore, a court-ordered examination in a TPR case brought on the grounds of mental illness should involve interviews of the respondent parent, a thorough assessment of his/her parenting skills, including parent-child observations, a current psychological examination and testing, contact with collaterals and other professionals who are providing mental health treatment to the parent or who possesses first-hand information about the parent's over-all family functioning as well as a thorough review of relevant medical/psychiatric records and court records.

Given the many advances in the area of psychopharmacology, the inherent limitations of providing a mental health diagnosis and predicting future behavior and functioning, as well as the existence of established APA guidelines for conducting a reliable and comprehensive court-ordered examination for presentation in court, more than a one-time interview of a respondent and a review of records is necessary to enable a court to find that a respondent parent not only suffers from a mental illness as defined by SSL, but that the mental illness is so severe and debilitating that the parent is presently, and for the foreseeable future, unable by reason of mental illness, to provide adequate care to their child.

For all the reasons set forth above, the instant petition to terminate RM's parental rights on the ground of mental illness is denied in its entirety.

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Petitioners Bring Case Regarding Food Stamp Benefits

July 21, 2015,

A New York Family Lawyer said that, petitioners/plaintiffs commenced this hybrid proceeding/class action in June 2006, challenging reductions in their food stamp benefits. The reductions were made pursuant to a pilot project entitled the Group Home Standardized Benefit Program ("GHSBP"), instituted by Respondent/Defendant who is the Commissioner of the Office of Temporary and Disability Assistance ("OTDA") of the New York State Department of Family Assistance.

In the course of the proceedings herein, Plaintiffs were granted partial summary judgment on their claim that the State Defendant's implementation of GHSBP violated the state constitutional and statutory rulemaking requirements, Intervenor was granted leave to intervene, the application for certification of the Plaintiff class was denied, and the State Defendant's motion for summary judgment was denied. By decision and order dated May 19, 2009, the Appellate Division, Second Department, reversed the denial of class certification and identified the Plaintiff class as "consisting of all recipients of food stamps in the State of New York whose food stamp benefits were determined and reduced under the Group Home Standardized Benefit Program and whose monthly income included payments of Supplemental Security Income benefits.
In their class action complaint Plaintiffs sought an order requiring Defendants, inter alia, to pay the costs and disbursements, including reasonable attorneys' fees, of the Plaintiffs and the Plaintiff class pursuant to the State Equal Access to Justice Act and CPLR § 909. At this time, Plaintiffs seek payment of these expenditures by the State Defendant.

A New York Divorce Lawyer said after Plaintiffs made their motion for attorneys' fees, costs and disbursements, the motion was marked off the calendar on June 17, 2009, pending the outcome of settlement discussions. While settlement discussions were pending, the State Defendant moved to reargue the propriety of the certification of the Plaintiff class. This motion to reargue was denied by the Appellate Division, Second Department, by decision and order dated August 25, 2009. Within thirty (30) days of this denial, Plaintiffs restored their original motion for attorneys' fees to the calendar and made their motion for supplemental attorneys' fees, costs, and disbursements incurred since June 18, 2009. In terms of specifics, the total amount sought by Plaintiffs in both motions, for attorneys' fees, costs, and expenses is $352,745.02. This amount includes a 10% reduction of hours for attorneys Vollmer and Castellano in the exercise of billing judgment.

Pursuant to the State EAJA, an application for an award of attorneys' fees and other expenses must be made "within thirty (30) days of final judgment in the action." A judgment is "final" for State EAJA purposes if it is "final and not appealable" [CPLR § 8602(c)]. The decision and order of the Appellate Division, Second Department, dated August 25, 2009, denying reargument of the certification of the Plaintiff class is not appealable, and therefore it is final.

A Nassau County Family Lawyer said entitlement to attorneys' fees is governed by the New York Equal Access to Justice Act ("the State EAJA"), found at CPLR Article 86. The State EAJA is modeled on the Federal Equal Access to Justice Act, found at 28 USC 2412(d), and the case law construing that Act. The State EAJA provides that "a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the State was substantially justified or that special circumstances make an award unjust". The parties vigorously dispute whether Plaintiffs meet the statutory standard for relief.

A Staten Island Family Lawyer said that the State EAJA defines "prevailing party" to mean "a Plaintiff or petitioner in the civil action against the state who prevails in whole or in substantial part where such party and the state prevail upon separate issues". The threshold question presented is whether Plaintiffs come within this definition.

A party has "prevailed" within the meaning of the State EAJA if it has succeeded in acquiring a substantial part of the relief sought in the lawsuit. The Plaintiff must identify "the original goals of the litigation" and demonstrate "the comparative substantiality of the relief actually obtained.
In this case the goal of the litigation was to enjoin the State Defendant from implementing GHSBP and to obtain retroactive relief. In their fourth cause of action, Plaintiffs alleged that the State Defendant's implementation of GHSBP violated the rule-making requirements of Article IV § 8 of the New York State Constitution and Article 2 of the State Administrative Procedure Act ("SAPA"), because no GHSBP-related documents were filed with the New York Department of State, no state regulations were ever promulgated to govern the operation of GHSBP, and no GHSBP documents were published in the New York State Register. This Court agreed, and declared that the implementation of GHSBP violated the aforementioned provisions of the State Constitution and SAPA.

By Partial Final Judgment dated December 13, 2007, this Court enjoined the State Defendant from operating the GHSBP until it complied with SAPA and the State Constitution, reinstated the food stamp benefits issued to Plaintiffs immediately prior to GHSBP, and enjoined the State Defendant to retroactively restore food stamp benefits to Plaintiffs to the month prior to the application of GHSBP. As a result of the class certification directed by the Appellate Division, Second Department, cessation of the GHSBP will benefit approximately 18,500 SSI recipients who reside in group homes across New York State. Under these circumstances, it is clear that Plaintiffs' succeeded in acquiring a substantial part of, if not the complete, relief sought in this litigation. There can be no doubt that Plaintiffs are a "prevailing party" for the purposes of the State EAJA.

"Substantially justified" has been interpreted to mean "justified to a degree that could satisfy a reasonable person" or having a "reasonable basis both in law and fact". In this Court's Decision and Order granting partial summary judgment to Plaintiffs, this Court noted as follows: Review of the implementation of GHSBP to blind and disabled group home residents who receive PA (Public Assistance) or SSI (Supplemental Social Security Income), reveals that in the interests of easier and more accurate bookkeeping, food stamp benefits were slashed according to a simple formula.

The "special circumstances" referred to in the State EAJA have been described as a "safety valve," giving a court discretion to deny an award of attorneys' fees and expenses, where "equitable considerations dictate that an award should not be made". Here, the State Defendant has not even addressed this "safety valve," although it has attempted to demonstrate its good faith in the implementation of GHSBP. Suffice it to say that good faith conduct by the state is not a special circumstance that would warrant the denial of a request for attorneys' fees. On this record, the Court has found no equitable considerations that would dictate the denial of Plaintiffs' application for this award.

The fees to be awarded under the State EAJA are "reasonable attorney fees", which "shall be determined pursuant to prevailing market rates for the kind and quality of the services furnished". The formula for determining a fee application is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate". The correct standard for determining Plaintiffs' request is "what a reasonable paying client would be willing to pay". A court must apply a presumption in favor of applying the prevailing rates of its district, here, the Eastern District of New York which includes Nassau County.

At the outset, this was not a garden variety action. The State Defendant describes this action as "novel" and "highly complex" (Logue Affirmations at pp. 6-7, 9, 11 and 24). Plaintiffs note that their file occupies 1½ lateral file drawers and consists of 92 distinct court submissions (see Reply Memo of Law at p.48). With this perspective, the Court turns to the number of hours at issue.
The Court has reviewed the time records presented by Attorneys and finds that these records provide adequately detailed information regarding each legal service provided in increments of no smaller than five minutes. When combining the figures for each attorney on the two motions, the total hours for services rendered from 7/14/06 to 9/24/09 for Vollmer are 683.15 hours. The total hours for services rendered from 2/06 to 9/24/09 the other are 272.35 hours. As noted above, both attorneys have reduced their "raw" time by 10%, in the exercise of billing judgment. In addition, each attorney has billed separately for clerical time as follows: Vollmer — 68.55 hours; 17.15 hours. Time sheets are also submitted for paralegal services rendered by him in the total of 393.10 hours.

The State Defendant complains that Plaintiffs overstaffed the case, and the fees sought are therefore excessive and unnecessary. They object to paying fees for two senior attorneys and a paralegal. Yet as Plaintiffs point out, conferences in this action were attended by two government attorneys, and an occasional junior associate or paralegal. Especially given the novel and complicated issues presented, and the way that the attorney’s expertise supplemented rather than duplicated that o the attorney and the State Defendant's objection cannot be sustained.
For the record, Plaintiffs have never burdened this Court with duplicative papers such as those presented by the State Defendant herein, where the only difference between the State's 25-page affirmation in opposition to the original motion for attorneys' fees (with exhibits), and the State's 25-page affirmation in opposition to the motion for supplemental attorneys' fees (with exhibits), was the addition of the word "supplemental" in the title, and the misnumbering of the footnotes.
The Court further considers the expertise of Attorneys had more than 20 years of legal experience at the commencement of this action, including extensive experience in litigating class actions involving government entitlement cases. His appellate experience is considerable. He has represented indigent appellants at 290 administrative fair hearings and commenced 180 lawsuits in state and federal courts. He notes that of the 171 cases decided to date, his clients prevailed in whole or in substantial part in 136 cases (Plaintiffs' memorandum at pp. 27).
The attorney has devoted 33 years to poverty law practice. He has been employed by the Mental Health Law Project of Nassau/Suffolk Law Services Committee, Inc., and MFY Legal Services Inc. For more than twelve years he has served as the Attorney in Charge of the Mercy Advocacy Program, a law office that provides free legal services to the poor, primarily those living with mental illness and housed by Mercy Haven, Inc. in Nassau and Suffolk Counties. He handles approximately 240 open cases, writes funding proposals and supervises staff at the Mercy Advocacy Program.

Prevailing market rates in the community are the proper basis for an award of attorneys' fees. The prevailing market rate for attorneys with more than 25 years experience in this area appears to be $350-$400 per hour $300-375 per hour for partners in class action; $325 per hour awarded in connection with claims of intentional discrimination pursuant to 1981, false imprisonment, and negligence. Under these circumstances the Court finds that the hourly rate requested of $325 per hour for Attorneys is reasonable.

Given the scope and complexity of the facts and legal issues raised in this action, the amount of time expended by Plaintiffs' counsel is, for the most part, reasonable. The State Defendant has expressly identified a small number of instances where the submitted attorney hours are unreasonable, and therefore some deductions must be made. Indeed, the Court finds that Plaintiffs' concessions on these limited objections, as set forth in their reply papers are appropriate, and therefore directs the following deductions from the amounts requested in the two motions: (1) Travel time — 5 hours of attorneys' fees, and 17½ hours of paralegal fees to be reduced to clerical rate. Attorney Vollmer reduced the charge for travel time from his hourly rate of $325 to the clerical rate of $25.00 per hour; also, paralegal rate of $85 per hour was reduced to $25 per hour for travel time. (2) Lobbying and media interactions — 25 attorney hours to be deducted (21 hours from and four hours for lobbying to eliminate the "government operations rule" by statutory amendment. (3) Amicus-related activity — 26 hours attorney hours, and one paralegal hour to be deducted in connection with the Rivera amicus.

The remainder of the State Defendant's objections do not warrant discussion and have already been taken into account by the 10% reduction of raw time by both attorneys. After the three identified deductions are made from the totals requested in the original motion for attorneys' fees and the motion for supplemental attorneys' fees, the motions are granted.

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Father Appeals Custody Hearing Awarding Custody to Grandparents

July 19, 2015,

A New York Family Lawyer said that, this is an appeal by the father of an 11-year old boy (1) from an order of the Family Court, Nassau County, entered July 31, 1973, which, without a hearing, awarded custody of the boy jointly to the 74-year old maternal grandmother and his 21-year old sister and the latter's 20-year old husband, with visitation granted to the father, and (2) from so much of an order of the Supreme Court, Nassau County, entered October 17, 1973, as referred and remanded the question of custody to the Family Court, Nassau County, for a full hearing and determination.

At issue in these appeals is the custody of an 11-year old boy. The boy was three months old when his parents separated in November, 1962. Custody was with his mother until she died on February 9, 1973. The boy then remained with his sister. Within a month after the death of the boy's mother, his father sought custody in the Family Court, Nassau County, as did the sister and her husband and the maternal grandmother. On the basis of a conversation with the boy, a report of the Family Court Mental Health Clinic and a report of the Nassau County Probation Department, but without a hearing, the Family Court awarded custody to respondents.

Thereafter, appellant obtained a writ of habeas corpus, which resulted in the second order under review.

A New York Divorce Lawyer said in our opinion, the matter should be remitted to the Family Court for a full hearing and determination, with temporary custody in the father pending such determination.

A Westchester County Family Lawyer said the Judge in the reversal of the Family Court order, but dissents from so much of the determination as remits the matter for a hearing and votes to grant final custody to the father; and also dissents from the affirmance of the Supreme Court order and votes to reverse that order insofar as appealed from and to sustain the writ and grant custody to the father, with the following memorandum:

A Suffolk County Family Lawyer said in my opinion, no hearing is necessary. Following the death of the mother, the appellant father filed a petition in the Family Court, Nassau County, seeking custody of his son. Respondents filed a cross petition and thereby took upon themselves the burden of proving the father had either abandoned his son or was an unfit parent. They failed to do this and I see no reason for giving them a second opportunity at this time. In a contest such as this between a parent and nonparents, we must recognize the 'paramount parental right to raise one's own child', 'In no case may a contest between parent and nonparent resolve itself into a 'simple factual issue as to which (affords) the better surroundings, or as to which party is better equipped to raise the child.' Yet, my reading of the record convinces me that is what occurred, i.e., the Family Court decided the boy would be happier in familiar surroundings with his sister and maternal grandmother rather than upstate with his father. The child's happiness or welfare is important, but in a case such as this it must give way to the superior right of a parent to the care and custody of his or her child, absent abandonment or unfitness. As stated, respondents did not sustain their burden in the Family Court, and there is no present claim of abandonment or that appellant's 'fitness' as a parent has changed since that time. In fact, the only change has been on respondents' part, as it appears that the maternal grandmother has entered a nursing home subsequent to the Family Court's determination. The father's petition should have been granted and respondents' denied.

Accordingly, the order of the Family Court reversed, on the law and the facts, without costs, and matter remitted to that court for a full hearing and determination. Pending such new hearing and determination, temporary custody of the child shall remain with the father.

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Court Listens to Two Related Cases Pursuant to Social Services Law 384b

July 18, 2015,

The two cases below are about family law and proceedings.

A New York Family Lawyer said the First case deals with two related proceedings pursuant to Social Services Law § 384-b (4) to terminate the mother's parental rights on the ground of permanent neglect, the mother appeals from two orders of disposition (one as to each child) of the Family Court, Nassau County (Foskey, J.), both dated June 13, 2002, which, after a hearing, determined that she failed to comply with the terms and conditions of an order suspending judgment of the same court (Koenig, J.) dated October 5, 2001, terminated her parental rights, and awarded custody and guardianship of the children to the petitioner for the purpose of adoption.

Ordered that the orders of disposition are reversed, on the law and in the exercise of discretion, without costs or disbursements, the violation petition is denied, and the matter is remitted to the Family Court, Nassau County, to conduct a fact-finding hearing on the neglect petitions and issue orders of disposition.

A New York Divorce Lawyer said the Nassau County Department of Social Services (hereinafter DSS) petitioned to terminate the mother's parental rights to her two children. These petitions culminated allegedly on the mother's consent without admissions and without a fact-finding hearing in a six-month order suspending judgment which covered both children and which had no stated terms or conditions. Within the six-month period, DSS filed a single petition covering both children alleging that the mother violated the order suspending judgment with respect to each child. The Family Court revoked the order suspending judgment and terminated the mother's parental rights to both children. We reverse.

A Manhattan Family Lawyer said the mother's contention that the order suspending judgment lacked specific terms and conditions and, therefore, the Family Court erred in revoking it and in terminating her parental rights, is unpreserved for appellate review (see Matter of Kim Shantae M., 221 AD2d 199 [1995]). However, we review the mother's argument in the exercise of discretion.

A New York City Family Lawyer said the Uniform Rules for the Family Court (22 NYCRR) § 205.50 (a) requires an order suspending judgment to contain at least one of the terms and conditions enumerated therein. Here, the order suspending judgment did not do so. It fact, it contained no terms or conditions at all. Accordingly, since the mother could neither comply with nor violate the order suspending judgment, the Family Court erred in terminating her parental rights based on its violation (see 22 NYCRR 205.50 [d]).

We reject the contention of DSS that the appeal must be dismissed because the orders of disposition allegedly were entered upon the mother's default. The orders of disposition do not recite her default, apparently because she was represented by counsel at the hearing culminating in the orders appealed from (see Matter of Sales v Gisendaner, 272 AD2d 997 [2000]).

Because the Family Court never held a hearing on the neglect petitions, we remit this matter to the Family Court, Nassau County, to conduct a fact-finding hearing on the neglect petitions and to issue orders of disposition.

The parties' remaining contentions need not be reached in light of our disposition.
The second case deals with two consolidated proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (DeMaro, J.), dated October 11, 1985, as amended October 25, 1985, which, inter alia, awarded custody of the parties' two children to the father.

Order, as amended, reversed, on the law and the facts, with costs, custody of the children is awarded to the appellant mother and the proceeding is remitted to the Family Court, Nassau County, to determine the visitation to be awarded to the petitioner, in accordance herewith. In the interim, the petitioner is awarded visitation as it was established under an order of the Family Court, Nassau County, dated May 10, 1985, which temporarily fixed child custody and visitation.
Although custody determinations are ordinarily a matter of discretion for the trial court, this court cannot allow a custody determination to stand where it lacks a sound and substantial basis in the record and is contrary to the weight of the credible evidence (see, Freiman v. Freiman, 99 A.D.2d 765, 471 N.Y.S.2d 870; Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411). The Family Court's finding that a change of custody to the petitioner was in the best interests of the children (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765), is not supported by the record. The Forensic Services Section of the Nassau County Department of Mental Health, the Nassau County Probation Department and the children's court-appointed Law Guardian all recommended that custody of the children remain with their natural mother and nothing in the parties' testimony at the Family Court hearing speaks for a different conclusion. The Family Court failed to state, in its decision, any reason for disregarding the collective recommendations of these disinterested persons. Additionally, the Family Court apparently failed to consider the parties' prior voluntary agreement which, except for a disputed period of some three to seven months, gave physical custody of the children to the respondent (see, Friederwitzer v. Friederwitzer, supra; Alan G. v. Joan G., 104 A.D.2d 147, 153, 482 N.Y.S.2d 272, appeal dismissed 64 N.Y.2d 1040, 489 N.Y.S.2d 1029, 478 N.E.2d 212).

Joint custody of the children is not advisable in this situation since the parties have not demonstrated that they have a stable, amicable relationship (see, Braiman v. Braiman, 44 NY2d 584, 590-591, 407 N.Y.S.2d 449; Matter of Bishop v. Lansley, 106 A.D.2d 732, 483 N.Y.S.2d 767). However, a liberal visitation schedule is desirable and this matter is remitted to the Family Court for an award of visitation on alternate weekends, plus whatever additional days or evenings, holidays and vacation periods are convenient for the parties. In the interim, the petitioner is to have visitation as it was established under the Family Court's temporary custody and visitation order, dated May 10, 1985.

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Defendant Contends The Court Has Insufficient Evidence

July 17, 2015,

A New York Family Lawyer said that on July 1, 2005, after spending several hours in a bar in Manhattan, at which he consumed at least six beers, the defendant attended a friend's party in Merrick in Nassau County. He arrived at the party, which consisted of a small gathering of his friends, between 11 P.M. and midnight. The house where the party was being held was approximately a five-minute drive from the Meadowbrook State Parkway.

At the party, the defendant was seen consuming several alcoholic drinks. Two of the defendant's friends who were at the party described the defendant as intoxicated or “buzzed.” However, neither one observed the defendant stumbling or staggering while he was dancing, nor was he observed to be slurring his words.

A New York Divorce Lawyer said that the defendant remained at the party for 1 1/2 to 2 hours before leaving in his pickup truck. Despite having previously received offers to sleep over or utilize a designated driver rather than drive after drinking, the defendant chose to get into his pickup truck and drive while intoxicated.

A Brooklyn Family Lawyer said shortly before 2:00 A.M. on July 2, 2005, ES was driving southbound in the center southbound lane of the Meadowbrook State Parkway, more than one mile south of the exit for Merrick Road, when she saw headlights of an oncoming vehicle also in the same center lane in the distance a “few football fields away.” She testified that she immediately veered into the right lane and eventually to the shoulder of the road to her right. She honked her horn three times as an oncoming pickup truck, which was later determined to have been operated by the defendant (hereinafter the pickup truck), passed her. As she looked over her shoulder watching the pickup truck travel northbound in the southbound lanes, she observed two other vehicles pulled over on the shoulder of the road. During the time that Serwin saw the pickup truck, it did not swerve or reduce its speed, which she approximated to be 70 to 75 miles per hour as it passed her.

A Bronx Family Lawyer said that JS, also driving south on the Meadowbrook State Parkway, testified that he first saw the pickup truck approximately one mile north of the location where Serwin veered out of the path of the pickup truck. Caruso saw the headlights of the pickup truck about a quarter of a mile away, directly in his path of travel. Caruso attempted to move to the left southbound lane, but the pickup truck tracked him and also moved towards the left southbound lane, causing Caruso to steer back to the center lane to avoid a collision with the northbound pickup truck. As the pickup truck was almost upon Caruso's vehicle, Caruso moved into the right southbound lane, just as the pickup truck passed his vehicle. Once the pickup truck passed, Caruso observed the tail lights of the pickup truck in his rear view mirror, and noted that the brake lights never illuminated during the time he had them in view.

Caruso also noticed that the pickup truck did not veer away or slow down as it headed towards him. He estimated that the pickup truck was traveling at a rate of speed between 70 and 80 miles per hour.

MS testified that, as he was driving southbound in the right southbound lane of the Meadowbrook State Parkway, just south of the exit ramp for westbound Sunrise Highway, he saw the pickup truck traveling northbound in the center southbound lane near the Sunrise Highway overpass and coming over a crest over Sunrise Highway approximately 15 to 30 yards away, traveling at “highway speed” in the wrong direction towards him. Sussingham continued to watch the pickup truck pass by the exits for Sunrise Highway in his rearview mirror, and never saw it move from the center lane, weave, or slow its rate of travel.

As the pickup truck continued its northbound path in the lanes for southbound traffic on the Meadowbrook State Parkway, Steven Weber, who was operating a motorcycle, saw the pickup truck traveling the wrong way in the southbound lanes, as Weber watched from the entrance ramp for westbound traffic on Sunrise Highway seeking to enter the northbound lanes of the Meadowbrook State Parkway. Weber immediately moved into the left northbound lane of the Meadowbrook State Parkway, pulling up to the median strip parallel to the pickup truck, which was in the lane immediately adjacent to the opposite side of the median strip. Weber then kept pace with the pickup truck at a steady speed of 70 miles per hour until he lost sight of it, just south of the Babylon Turnpike overpass, due to the obstruction caused by bushes in the median strip. It was at this time that Weber heard a crash.

Weber never observed the pickup truck swerve or slow down, or the brake lights illuminate. He also did not see the pickup truck attempt to pull over or stop. Weber observed the defendant operating the pickup truck and looking straight ahead during the entire time that Weber was watching the defendant. During that time, Weber saw the lights of another vehicle, traveling in the southbound lanes of the Meadowbrook State Parkway, exit the parkway.

At the same time that the defendant was driving the wrong way in the southbound lanes of the Meadowbrook State Parkway, a limousine was proceeding south in the left southbound lane of the Meadowbrook State Parkway. The limousine encountered the pickup truck headed directly towards it just north of the Babylon Turnpike overpass. The limousine, driven by SR, was carrying a family, consisting of JF and NF, their two daughters, seven-year-old KF and five-year-old GF, and Jennifer's parents, Christopher Tangney and Denise Tangney, back home from the wedding of the Tangneys' youngest daughter.

Upon observing the pickup truck as it was heading directly towards the limousine, SR attempted to veer into the center southbound lane so as to avoid it. However, there was another southbound vehicle traveling in the center lane alongside the limousine preventing SR from completing the maneuver. Christopher Tangney, who was seated in the rear of the limousine facing forward, thereby allowing him to see the road through the windshield, recounted that the pickup truck “moved over ... towards us. And then Mr. SR tried to move again. And then the truck ... seemed to follow us.” The jury was able to observe a video of the path that the pickup truck took immediately before it collided with the limousine, tracking the limousine's movement as described by Christopher Tangney in his testimony, since the limousine was equipped with a camera which recorded the movement of the pickup truck during the seconds immediately preceding the collision.

The pickup truck collided head-on with the limousine, apparently having tracked the limousine's movement, crushing and killing SR, decapitating KF, and causing severe, and, in some instances, life-threatening, injuries to the remaining passengers in the limousine.

Steed Davidson, the driver of the vehicle which had been traveling southbound in the center southbound lane of the Meadowbrook State Parkway adjacent to the limousine at the time of the collision, testified that the pickup truck was “coming quickly” towards his vehicle and the limousine, and did not slow down before the crash. He also testified that the pickup truck did not attempt to exit the parkway or go towards the shoulder of the roadway.

MG, one of the first people on the scene of the collision after it occurred, called the 911 emergency number at 2:01 A.M. The police officers responding to the scene of the collision observed that the defendant was sitting upright with his eyes open.

The defendant was placed under arrest at the scene, and was later informed of his arrest by Investigator Eric Baez of the New York State Police. Upon being so advised, the defendant told the police that from the time he had moved to New York from Arkansas the previous October, “everything was going wrong” and “nothing he did was ever enough.” The defendant recounted to the police that he had argued with his ex-girlfriend over the phone, had financial problems, had recently lost his grandmother with whom he had been close, and was very upset, depressed, and in a “self-destructive mode.”

The jury convicted the defendant of two counts of murder in the second degree, and two counts of operating a vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192). The defendant was sentenced to an indeterminate term of imprisonment of 18 years to life on his convictions of each count of murder in the second degree, a determinate term of 18 years of imprisonment plus 5 years of postrelease supervision on his convictions of each count of assault in the first degree, and a definite term of 180 days of incarceration on his convictions of each count of operating a vehicle while under the influence of alcohol, all terms to run concurrently.
Contrary to the People's contention, the defendant's argument that the evidence was legally insufficient to support the convictions of murder in the second degree under Penal Law § 125.25(2) and assault in the first degree under Penal Law § 120.10(3), crimes which require proof of depraved indifference, is preserved for appellate review. Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to support the defendant's convictions of depraved indifference murder and assault in the first degree.
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence, we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony and observe demeanor. The question of whether the defendant possessed the mens rea of depraved indifference to human life is highly fact-sensitive, requiring a case-by-case analysis. Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence. Accordingly, the decisions of the Court of Appeals in People v. Prindle, relied upon by the defendant and our dissenting colleague, do not foreclose a finding of depraved indifference under the particular facts of this case, notwithstanding that the defendant's blood alcohol concentration registered .28%.

A person acts with depraved indifference if he or she does not care if another is injured or killed. Depraved indifference murder [or assault] differs from intentional murder [or assault] in that it results not from a specific, conscious intent to cause death [or injury], but from an indifference to or disregard of the risks attending defendant's conduct.

The evidence presented to the jury established that, 15 to 30 minutes before the collision, the defendant, although intoxicated, remained steady on his feet and held conversations without slurring his speech. Furthermore, the other drivers who observed the pickup truck traveling on the Meadowbrook State Parkway testified that the pickup truck maintained a steady speed, successfully negotiated the curves of the parkway, and stayed within one lane of travel, except in those instances where the defendant apparently tracked the headlights of the oncoming vehicles as they attempted to avoid the pickup truck. The testimony also established that, for the approximately 2.5 miles that the defendant was observed driving the wrong way on the Meadowbrook State Parkway prior to the impact with the limousine, the defendant passed “wrong way” signs, the back side of highway signs, at least five sets of headlights shining directly at him, at least one set of headlights suddenly veering to one side, and tail lights on the other side of the guide rail. In addition, he was confronted with a horn blaring three times and the noise of a loud motorcycle on the other side of the median strip keeping pace with him in the same direction. Given all of the foregoing evidence, it was reasonable for the jury to conclude that the defendant was aware that he was driving the wrong way and deliberately chose to continue to proceed in the northbound direction, against traffic, without regard for the grave danger to himself and others traveling on the parkway that night.

The defendant's reliance on People v. Valencia, is misplaced, and does not dictate a different result, notwithstanding that it also involved an intoxicated motorist traveling the wrong way on a parkway. Contrary to the analysis by our dissenting colleague, this matter is distinguishable from Valencia in that there was no evidence in Valencia that the defendant tracked the other vehicles when they changed lanes to avoid him. Indeed, Valencia's counsel specifically argued that there was no evidence of a disregard for human life, relying on the fact that the defendant did not swerve into the path of the other drivers.

Moreover, in rendering the verdict that the defendant was guilty of assault in the first degree pursuant to Penal Law § 120.10(3), the trial court in Valencia, after a bench trial, stated that the evidence established that the defendant was highly intoxicated at the time of the accident and “was simply oblivious to all of the indices of alarm and warning attendant to his dangerous travel on the parkway” (emphasis added). Unlike Valencia, the evidence here did not establish that the defendant was intoxicated to a degree of total oblivion or mania. The testimony of eyewitnesses and the People's expert established that the defendant here was neither totally oblivious nor incapable of comprehending the gravity of his actions due to his intoxication. Here, the People presented evidence showing that when the defendant was last seen by his friends at the party, less than 30 minutes before the crash, and when the other drivers observed him driving the wrong way on the Meadowbrook State Parkway, he was not “simply oblivious,” as was the case in Valencia.

Furthermore, the Valencia trial court found the defendant to have the requisite mens rea to commit depraved indifference assault based upon his decision earlier in the evening to drink heavily, knowing that he would be operating his vehicle later on that evening, and not as a result of his actions at the time that he was driving in the wrong direction on the parkway. In reversing the conviction, this Court rejected the prosecution's argument that “the mens rea component of depraved indifference assault may be satisfied by considering the defendant's state of mind at a point much earlier in time than the accident, when the defendant allegedly made a conscious decision to consume an excessive amount of alcohol with the awareness that he subsequently would be operating a motor vehicle”.

Unlike the trial court's finding in Valencia, the jury here was presented with evidence which established that the defendant's mens rea was formed when he continued to travel in the wrong direction on the Meadowbrook State Parkway and tracked other vehicles that were traveling in the correct direction and attempting to get out of his way. Given the defendant's statements to the police that he was in a “self-destructive mode” and depressed about the state of his life at the time, it was reasonable for the jury to find that the defendant possessed the requisite mens rea for depraved indifference at the time that the impact with the limousine occurred. This is especially germane since the jury also had before it a letter written by the defendant, while incarcerated and awaiting trial, to one of his friends, wherein he recounted the statements he made to the police and proclaimed that he was lying at the time that he made the statements in an attempt to paint himself “as an unfortunate victim of circumstance worthy of leniency,” rather than telling the police the truth about having been drinking at a friend's house that night. In so doing, the defendant confirmed the accuracy of the police officers' testimony concerning the statements he made to them. In light of the foregoing, the jury's finding that the defendant exhibited a depraved indifference to the lives of those he encountered on the Meadowbrook State Parkway, as well as his own, was warranted.

Furthermore, the defendant did not testify on his own behalf. Thus, the only manner in which the jury heard the defendant's “own words” concerning his state of mind was through the testimony of the police officers, who recounted the defendant's statement to them at the hospital, and through the defendant's letter. In that letter, the defendant admitted that he would lie to protect his friends and family and to make himself appear sympathetic and not as a “hooligan.” Despite the defendant's admission of his propensity to lie, the dissent relies upon the statements contained in this letter, written after the defendant was made aware that he was facing multiple murder and assault charges, rather than upon the defendant's earlier self-incriminating statements made to the police at a time when he did not yet realize he was facing such charges. Given the jury's ability to consider all of the defendant's statements and to weigh the veracity of each in light of the defendant's acknowledgment that he had no compunction about lying, we are unwilling to set its verdict aside as against the weight of the evidence on the basis of this letter.
Our dissenting colleague further notes that the defendant's blood was drawn at 2:40 A.M. without his consent because the defendant “was so intoxicated” and was “unable to provide” consent. However, the jury also heard evidence that the defendant told the police that he was “basically knocked out” as a result of the impact, and next remembered being in the hospital. In addition, the jury heard testimony that the defendant's pickup truck suffered “severe front-end damage,” and viewed numerous photographs documenting such damage. Moreover, the testimony established that the defendant was removed from the scene in a neck brace on a backboard, and eventually was moved to an intensive care unit of a nearby hospital after being taken for computed axial tomography scans, commonly known as CAT scans, and X-rays. Thus, contrary to the conclusion reached by the dissent, we cannot say that the defendant's inability to provide consent when his blood was drawn was necessarily a result of his consumption of alcohol earlier in the evening.

In addition, the jury heard testimony from the prosecution's expert, a forensic toxicologist, that an average male, weighing 180 pounds and standing 5 feet, 10 inches, with a blood alcohol concentration of .28%, would necessarily have had approximately 14 “drinks” in his system, and if that average male began drinking at 4:30 P.M. and continued until 1:00 A.M. or 1:30 A.M., he would necessarily have had 20 “drinks” in his system, with a drink equaling a unit of alcohol such as 12 ounces of beer or 1 shot of liquor. The jury also heard testimony from the People's expert that a blood alcohol concentration of .28% would not prevent a person, such as the defendant, from reacting to different stimuli, such as oncoming headlights, the reverse side of highway signs, and blaring car horns, for a period of 2 1/2 minutes. The expert also stated that a person's response to stimuli would be completely shut down only if the person were rendered unconscious. The jury was also informed that an intoxicated person on an unfamiliar road confused by his or her surroundings would not be expected to maintain a steady speed and drive in a straight line, as the defendant did. Thus, the expert's testimony, which was wholly uncontroverted by the defendant, when considered with the testimony of those who observed the defendant immediately before the impact, provided a basis for the jury to reasonably determine that the defendant had the requisite mens rea to commit depraved indifference murder and assault at the time that the impact occurred.

Similar to the decision in People v. Valencia, the Court of Appeals' decision in People v. Prindle, does not warrant reversal of the defendant's convictions of depraved indifference murder and assault. The evidence in Prindle established that the defendant was driving erratically on a two-way road in an attempt to avoid apprehension by the police for the larceny he had just committed. Here, the defendant was not attempting to avoid the police at the time of the accident. Rather, the evidence established that the defendant entered a divided highway against the direction of the “wrong way” signs, accelerated to and maintained a speed of 70 miles per hour, ignored numerous other obvious indicia that he was traveling the wrong way against traffic, and tracked oncoming vehicles that attempted to avoid his vehicle, all while he was in a self-described “self-destructive mode.”

The dissent notes that the defense presented testimony from an accident reconstruction expert that, applying a linear momentum formula, the defendant's pickup truck was traveling at 33 miles per hour. However, this same expert also testified that application of a time-distance formula yields the conclusion that the defendant's pickup truck could have been traveling at 38 miles per hour at the time of impact, and that the expert could not calculate the speed at which the vehicle was traveling at any time prior to impact. Nevertheless, the jury was presented with testimony from Weber that, immediately prior to the impact, at the point that the northbound and southbound lanes for travel on the Meadowbrook State Parkway became separated by a median strip landscaped with bushes, Weber kept pace with the defendant's vehicle while traveling at a speed of 70 miles per hour. In any event, the fact that the defendant continued to drive in a northbound direction, despite being presented with numerous indicia that he was traveling in the wrong direction, into the path of oncoming vehicles headed in the correct southbound direction on the Meadowbrook State Parkway, while traveling at speeds appropriate for travel on a highway evinced his depravity. The evidence, thus, demonstrated that the defendant acted with depraved indifference to the grave risk of injury to other persons traveling on the highway, as well as to himself.

Even though our dissenting colleague recognizes that it is not established in New York that intoxication can be asserted as a defense to conduct evincing depraved indifference that results from severe inebriation, he nevertheless suggests that “we must all admit that without a mens rea of recklessness, the statutory prohibition contained in Penal Law § 15.05(3) is no longer applicable.” The dissent posits this conclusion even though this Court, in Valencia, noted that “we have no occasion to decide the separate question of whether voluntary intoxication may negate the mens rea of depraved indifference”. Further, Judge Graffeo, concurring with the Court of Appeals' majority in that matter, echoed the fact that this was the current state of the law in New York with respect to this issue. Judge Graffeo explained that, under the “objective circumstances” standard set forth in People v. Register, for depraved indifference offenses, “it was recognized that the intoxication defense did not apply to the depraved indifference element”, and asked the Legislature to address the question of whether there had been a change in the law given the shift from the “objective circumstances” standard to the “subjective culpable state of mind” standard set forth in People v. Feingold. It would not be appropriate for this Court, as the dissent suggests, to evaluate this case as if the Legislature had resolved this issue in favor of accepting voluntary intoxication as a defense to an element of depraved indifference. To date, the Legislature has not addressed this issue. In short, we decline to apply the approach urged by the dissent since it has neither been adopted by the Legislature nor announced by the Court of Appeals.

Thus, contrary to the approach taken by our dissenting colleague, the evidence presented to the jury established that the defendant engaged in reckless conduct which created a “grave” risk of death, thereby evincing a depraved indifference to human life. Accordingly, we conclude that the People established the defendant's guilt of two counts of murder in the second degree and three counts of assault in the first degree beyond a reasonable doubt.

Further, the Supreme Court properly denied the defendant's motion pursuant to CPL 330.30 to set aside his conviction on the ground that the jurors improperly considered the defendant's prior arrest for and conviction of driving while intoxicated. Improper influence includes even well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial.

One of the jurors testified, at a hearing held in connection with the defendant's motion, that another of the jurors stated during deliberations that the defendant had “a prior DWI” when he was in college. However, upon hearing that information, that juror did not immediately change her vote from a conviction for manslaughter to a conviction for murder. She stated that the information had an influence on her, but that it was not the only influence, even though, in a statement she provided to the prosecution, she denied that the information had any influence on her vote. Moreover, each of the other jurors who testified at the hearing stated that no such statement was made. Thus, the evidence adduced at the hearing failed to establish the defendant's claim of juror misconduct.

In addition, the trial court providently exercised its discretion in denying, without a hearing, that branch of the defendant's motion which was to set aside the verdict on the ground that the jury improperly deliberated about the jail time the defendant could receive if he were convicted of manslaughter in the second degree as opposed to murder in the second degree, because the evidence submitted with the motion did not demonstrate that the jury's determination of guilt or innocence was affected by any such consideration.

The trial court likewise providently denied, without a hearing, that branch of the defendant's motion which was to set aside the verdict on the ground that the jury deliberated about the defendant's decision not to testify and his failure to call a specific witness to testify, because the evidence submitted with the motion did not establish that the jury was subject to an outside influence with respect to these issues.

The defendant's remaining contentions are without merit.

Accordingly, appeal by the defendant from a judgment of the Supreme Court, Nassau County, rendered February 28, 2007, convicting him of murder in the second degree (two counts), assault in the first degree (three counts), and operating a vehicle while under the influence of alcohol (two counts), upon a jury verdict, and imposing sentence.

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Petitioners Request Final Judgment

July 16, 2015,

A New York Family Lawyer said a motion (seq. No. 1) by the attorney for the petitioner for an order pursuant to Article 78 of the Civil Practice Law and Rules to compel the County Respondents to reduce petitioners' total assessments on the April 2006 final roll by applying RPTL § 1805 assessment limitations and caps, and defining "assessment" as full property value-or-if a lower total assessment reduction results, to apply RPTL § 1805 assessment limitations to the parcel's land assessment, and defining "assessment" as the full property value and "land assessment" as the full land value; to compel respondents, when applying RPTL § 1805 assessment limitations, to use an assessment as reduced by judicial review as the "previous year's" assessment; and to compel Nassau County to pay refunds for any overpaid tax bills is determined as hereinafter set forth and adjourned suasponte to November 15, 2007. Cross-motion (seq. No. 2) by the attorney for the respondents for an order pursuant to CPLR § 3211(a)(5) and CPLR 3211(a) (7) dismissing petitioners' Article 78 proceeding is denied.

A New York Divorce Lawyer said the petitioners bring the within Article 78 proceeding for a judgment declaring that the alleged disparate treatment of petitioners' class one property compared to class two and four properties with respect to lowering the level of assessment to avoid the application of RPTL § 1805 constitutes a violation of the equal protection clauses of the State and Federal Constitutions and petitioners are entitled to a refund from Nassau County for any overpaid tax bills.

A proceeding pursuant to CPLR Article 78 must be commenced Within four months after the determination to be reviewed becomes final and binding on the petitioner (see CPLR 217). In seeking to challenge their real property tax assessment, the four-month statute of limitations begins to run upon the receipt of a tax bill, the point at which the petitioner has actual notice of the tax determination. The petition is timely laving been served within four (4) months of the school tax bill issued on or after October 1, 2006.

A Nassau County Family Lawyer said the attorney for the petitioner acknowledges that in the Matter of O'Shea v Board of Assessors of Nassau County; in the Matter of Minkoff v County of Nassau; in the Matter of Briffel v County of Nassau, 8 NY3d 249 (O'Shea), the court rejected petitioners' interpretation of the term "assessment," stating that "it makes little sense to read this provision as referring to market value rather than fractional assessment." Id. at 260. The court held that the term "assessment" means assessed value not full market value and that the § 1805(1) 6% cap is applicable to the fractional assessed value not full market value.

A Staten Island Family Lawyer said the petitioner contends O'Shea did not address the equal protection claims (Petition ¶ 30-31) that "Respondents' disparate treatment of petitioners (class one properties) compared to class two and four properties with respect to lowering the level of assessment to avoid application for RPTL § 1805 constitutes violation of the equal protection clauses of both the State and Federal Constitutions, resulting in the damages alleged.

An O'Shea, 8 NY3d at p. 3, the Court stated: "Article 18 allowed special assessing units to apply different fractional assessment percentages to each of four classes of property: one-, two- and three-family residential property (class one); all other residential property except hotels and motels and other similar commercial property (class two); utility property (class three); and all other (class four) (see Real Property Tax Law § 1802). Article 18 was `designed to maintain the stability of relative property class tax burdens.' In general, Article 18 authorized a special assessing unit to fix class shares using the tax roll for the 1981-1982 levy with leeway to increase or decrease shares in subsequent years up to five percent to accommodate changes in the roll or new construction (former Real Property Tax Law § 1803; and to increase individual assessments for class one property as limited by Section 1805(1)."

O'Shea did not reach the issue of unequal protection of the law. CPLR § 3211(a)(5). On a motion to dismiss pursuant to CPLR 3211(a)(7), the Court must accept as true, the facts "alleged in the complaint and submissions in opposition to the motion, and accord plaintiffs the benefit of every possible favorable inference" determining only "whether the facts as alleged fit within any cognizable legal theory." Moreover, the petitioner has no obligation to demonstrate evidentiary facts to support the allegations contained in the petition.

Petitioners argue that they are being treated unequally vis a vis Class 2 taxpayers. Petitioners allege "unlike residential parties, the respondents maintained the same level of assessment, 1% for class two and four properties on the 2005 and 2006 rolls as compared to the first reassessment role." (Petition ¶ 31). "Currently, only Class 2 (co-ops, apartment buildings and condominiums greater than three stories) and Class 4 (commercial) properties are subject to a five-year phase-in." (Petitioner's Exhibit H).

The intent of O'Shea (at 261) was to "bring assessed values in line with market values over three years in order to reduce accumulated and significant tax disparities between poor and more affluent residential areas, without changing the tax burden of the residential class as a whole." Implicit in petitioner's allegation is that class one residential taxpayers are given unequal treatment vis a vis class two residential taxpayers of similar pecuniary status (in high-rise condominiums greater than three stories) who are not subject to a fractional assessment. M this stage of the proceedings, giving the petitioners "every favorable inference" the motion to dismiss the petition is denied. Sokoloff v Harriman Estates Development Corp., supra.

Respondent's application to interpose an answer pursuant to CPLR 7804 is granted. Respondent shall have until November 30, 2007 to serve an answer.

Petitioner shall submit a memorandum of law addressing the issue of "equal protection of the law" no later than Decmeber 15, 2007. A Memorandum of Law in opposition shall be served no later than January 2, 2008. No Reply Memorandum may be served without prior approval of the court. Application for such approval shall be made no later than January 4, 2008. The return date for the motion for a declaratory judgment is adjourned sua sponte to November 15, 2007.
Accordingly, this constitutes the Order of the Court.

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Court Discusses Procedural History of Case

July 15, 2015,

A New York Family Lawyer said that at the outset, the Court would like to clarify some of the procedural history of this case which is related to the action Aurora v. Loan Services LLC v. BOM, et al., Index Number 22937/2009, a residential foreclosure proceeding.

Originally the undersigned under the mistaken impression that all papers had been fully submitted on the applications decided herein before these matters were reassigned to this part, issued decisions without the parties' complete submissions. As a result, the Court vacated the decisions under motion sequence numbers 001 and 002 and, at a conference, counsel and the pro se defendants were informed of a new submission date and told to bring to the Court's attention any additional arguments they deemed appropriate.

A New York Divorce Lawyer said that after the new applications appeared on the calendar and were submitted for decision, the undersigned learned that instead of returning motions sequence numbers 001 and 002 to the calendar for a new submission date, the motion and cross-motion had been assigned new sequence numbers and the order of the motions had been reversed, i.e., motion sequence 001 was now sequence 004 as a cross-motion and cross-motion sequence 002 was now motion sequence 004.

The Court addresses this unusual situation because, subsequent to the submission dated, the parties continued to send correspondence to chambers containing legal argument.
Consequently, as a matter of judicial discretion and in the interests of justice, the Court shall consider all such correspondence which will be preserved for the record over objection.
In addition, the Court considers first the cross-motion of Aurora Loan Services, LLC to intervene as a party defendant in the action at bar (CPLR 1012 (a) (2) and (3)). That application is granted and its answer is deemed served.

A Westchester County Family lawyer said Aurora is the purported current assignee of the note and mortgage to the subject property and is the plaintiff in the companion foreclosure matter in which plaintiff herein is a named defendant.

There is no other party to the instant action that may adequately represent the interests of Aurora as assignee. The only party defendant that might be able to is Geneva Mortgage Corp., the original holder of the note and mortgage. However Geneva has not answered the complaint and is the subject of a default application, part of plaintiff's omnibus motion that will be addressed below.

A Suffolk County Family Lawyer said that CPLR Section 1012 (a) (2) and (3) allows intervention as of right when the action involves a disposition of property and the proposed intervener may be adversely affected, which is certainly the case here. Moreover, movant's application is timely (see Nor star Apartments, Inc. v. Town of Clay, 112 AD2d 750; compare Jiggetts v. Bowling, 21 AD3d 178).

Since the question on Aurora's cross-motion is not whether it will ultimately be successful in the action but if it should be heard in the first instance, Aurora is now considered a party defendant.
Now, upon the foregoing papers, plaintiff's motion for summary judgment pursuant to CPLR 3212 against defendants DG a/k/a David DGe and Halli DGe is granted as set forth below and its motion for a default judgment pursuant to CPLR 3215 (a) against defendants BOM, Geneva Mortgage Corp., Velocity Investment, LLC, Horizon Shores Condominium, Merrill Lynch Equity Management, Inc. and Bank of American, N.A. as successor by merger to Fleet National Bank is likewise granted. The remainder of the application is determined as follows:

Initially, the Court permits plaintiff's application for default judgments to be heard because, although the complaint was filed on October 23, 2008 and service upon the defendants followed shortly thereafter, defendant Geneva filed for bankruptcy May 13, 2009 and the Chapter 7 petition was not closed until July 14, 2010. Moreover, with the exception of defendants Geneva and BOM, the remaining defaulting defendants appear to have had previous liens against the property that were presumably satisfied. In any event, defendants' objections in this regard are without merit.

The Clerk is directed to enter a default judgment against the defendants listed above.
Plaintiff's motion for summary judgment against the DG defendants stems from an action to foreclose on a lien totaling $64,597.60 created by a judgment recorded in Nassau County on September 17, 2007. The underlying proceeding which lead to the judgment is not at issue in this application.

In this action, plaintiff asserts defendant DG fraudulently concealed his assets to appear judgment-proof. Toward that end, it is alleged that DG and a non-party "cohort" AJ secured two mortgages from defaulting defendant Geneva totaling $558,000. to be used to purchase property located at 31 Barnes Street, Long Beach, New York.

Allegedly, AJ's role was to employ a power of attorney on behalf of defaulting defendant BOM, who had an excellent credit rating and agreed to assist DG in obtaining the necessary mortgages to purchase the property.

The property was then purchased and the deed recorded in both DG's and BOM's name. About one month later DG's interest was transferred to his daughter Halli without consideration so it would appear that he had no recorded interest in the Property.

Plaintiff maintains that the power of attorney from defendant BOM was forged using a fake notary stamp; therefore her initial purchase of the property should be deemed void ab initio. Likewise, with respect to the Halli transfer which relied upon the same fake notary stamp, plaintiff argues the conveyance must be set aside in its entirety as a fraudulent conveyance under the Debtor and Creditor Law.

Plaintiff's Exhibit 19 purports to be a copy of the power of attorney dated February 19, 2007 from BOM to AJ signed before notary BK, #01KA3156492, whose commission was to expire September 30, 2009. The signature of BOM appears to be the same as that on the copy of the driver's license issued on July 19, [200 digit illegible] and expiring November 26, 2010, with her date of birth as November 26, 19 [digit illegible] 6.

Plaintiff seeks to have this Court conclude that the signature of BK as a notary was a forgery as a matter of law. Exhibit 33, a print-out of a notary list from the Department of State Division of Licensing seven months before Kaye's commission was to expire, does not contain the name of any BK or anyone assigned the identification number 01KA3156492.

First, the Court must emphasize that the decision in a summary judgment motion may not be based upon the credibility of any party. Only if plaintiff can demonstrate as a matter of law that it is entitled to judgment on the question of creditor fraud and the responding defendants fail to offer proof sufficient to raise a question of fact may the application be granted.

Plaintiff's assertions against the DG/BOM/Geneva mortgage transaction and the subsequent DG/Halli intra/family transfer without consideration by the use of forged instruments is demonstrated by sufficient proof including that the notary stamp is fictitious or a forgery.
The only opposition to plaintiff's application for a declaratory judgment on these causes of action is from defendants DG and Halli, and to some extent, Aurora.

Defendant DG explains that although he did not have the necessary credit history he wanted to buy the subject property because he and Halli were about to be evicted from their apartment in a landlord/tenant proceeding. His "good friend" AJ, who DG told about the problem, arranged to have BOM, who had a credit rating high enough to receive no-document 100% financing, to assist in obtaining the loans for a fee.

According to DG, he found a better deal with Geneva Mortgage Corp. than the company originally suggested by the mortgage broker. He then asked AJ to cancel his first application where BOM allegedly had appeared in person in Brooklyn and signed all the required documents.

Defendant DG describes that subsequently, he and AJ met at BOM's apartment in the Bronx and she agreed to give Geneva's representative her personal and credit information by telephone. She also provided AJ with a power of attorney so she would not have to attend the closing in person. He admits there was no notary present at the meeting.

Nevertheless, AJ appeared at the closing with a notarized power of attorney which he and DG used to close the sale.

Concerning the first recorded transfer to Halli which also relied upon the false notary signature, defendant DG claims that on June 3, 2009 he, along with BOM in a person, accompanied by a mutual friend Vita Guzmand and AJ, who waited in the car, executed a corrected deed transfer to Halli sworn to before a clerk of the Bronx County Court who was a notary. That transfer is declared void since it was allegedly attempted after defendants DG and Halli answered the complaint in this action.

However, other than his self-serving affidavit describing these events, defendant DG provides no corrobating affidavits or admissible evidence whatsoever from AJ, BOM, BK, the first mortgage broker or anyone else who could raise a material, genuine issue of fact contesting plaintiff's evidence. Moreover, defendant DG fails to establish that the so-called "corrected" deed to Halli made after this action was commenced was even filed and recorded in the Bronx or elsewhere.
Debtor and Creditor Law Section 273 provides that "every conveyance made and every obligation incurred by a person who is insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is made or the obligation is incurred without fair consideration." Case law holds that where a transfer is made without consideration, the defendant is presumed to be insolvent at the time of transfer. The defendant may rebut that presumption of insolvency by admissible evidence.

A claim under DCL Section 273 does not require proof of intent to deceive or other elements required under traditional fraud actions. If the conveyance is made without fair consideration while the transferor is a defendant in an action for money damages or a judgment has been docketed against him, it is fraudulent without regard to his actual intent if he fails to satisfy the judgment (DCL 273-a).

In the case at bar there is no question that a New York County judgment was docketed in Nassau County. Even if DG, as he claims, was unaware of the judgment, as a matter of law DG knew that he was a defendant in an action for money damages that had been pending for a considerable amount of time and in fact at one point had signed a stipulation of settlement.
Furthermore, the defendants do not claim that Halli was a bona fide purchaser of her father's one-half interest in the property or of BOM's, for that matter.

Lacking consideration, the transfer from DG to Halli under these undisputed facts was a fraudulent conveyance and thus void as a matter of law.

Accordingly, plaintiff's motion for summary judgment against defendants DG and Halli, is granted only to the extent that DG's conveyance of one-half of his property interest to Halli constituted a fraudulent conveyance under DCL 273-a; therefore Halli's ownership interest in that one-half portion of the property is declared null and void and that one-half interest reverts back to DG.
Plaintiff also seeks to have DG declared the sole titled owner of the property by setting aside the interests of both BOM and Geneva, two of the defaulting defendants.

With respect to BOM, there is no admissible evidence opposing plaintiff's assertions that the first transfer to Halli by BOM of her one-half interest on April 1, 2007 was void able, being based upon the fictitious notarization by BK. Thus, the Court concludes the original deed recorded with DG and BOM still stands.

Concerning defendant Geneva, plaintiff's motion for summary judgment pursuant to DCL 272 and 276 must be denied based upon the questions of fact raised by defendant Aurora, its successor in interest.

The Court keeps in mind that by the time this action was commenced, Geneva had already assigned the note and mortgage and subsequently filed for bankruptcy.

Also, defendant DG states in his affidavit that BOM spoke to the Geneva agent on the telephone and he heard her provide Geneva with her credit information, which is corroborated within plaintiff's Exhibit 16 and signed by her purported attorney in fact, AJ, on February 27, 2007.
Therefore, the Court cannot determine as a matter of law that Geneva's mortgages are void pursuant to DCL Sections 272 and 276 as alleged in the third cause of action, nor for that matter conclude as a matter of law that Geneva acted with either constructive or actual knowledge of any fraudulent scheme.

With no admissible evidence before the Court that Geneva was acting in bad faith at the time of these transactions, that the subsequent assignments are void as a matter of law, or that defendant Aurora's interest in the note and mortgage occurring over two and one-half years after Geneva's first assignment was obtained in an illegal or fraudulent manner, plaintiff has failed to prove in the first instance an interest superior to Aurora's senior secured rights as a matter of law thereby shifting the burden to defendants Geneva and Aurora.

As to the remaining applications, plaintiff's motion with respect to the fourth cause of action against Merrill Lynch Equity Management, Inc. and the fifth cause of action against Bank of America, N.A. as successor by merger to the Fleet National Bank is granted.

It is declared that these mortgages no longer constitute liens on the property and will be disposed of at the conclusion of the companion foreclosure action when the clerk shall make all appropriate entries.

Plaintiff's sixth cause of action for attorney's fees shall be held in abeyance pending the conclusion of these matters.

The motion for judgement on the seventh cause of action for damages to an apartment in Manhattan, the subject of the action that resulted in the DG/Halli judgment filed in Nassau County, in the amount of approximately $15,000. is denied. Defendants have raised issues of fact in their affidavits.

In any event, the Court sua sponte severs this cause of action for money damages which is unrelated to the remaining causes of action and the companion case sounding in equity in that it does not involve a judgment or a foreclosure of property occurring in Nassau County.
Furthermore, both plaintiff and the DG defendants reside for venue purposes in New York County and the property that was allegedly damaged is located in New York County.

In order to expedite both main actions, the Court will entertain a motion on notice from defendant Aurora to transfer this seventh cause of action to New York County.

Finally, plaintiff's motion with regard to the eight cause of action is also denied. The priority of all liens and judgments shall be determined in the companion action.

In conclusion, the Court acknowledges the validity of plaintiff's Nassau County lien filed by virtue of the judgment rendered in New York County, which at this point attaches to one-half the debtor's interest in the subject property. That judgment may not be collaterally attacked in Nassau County; consequently the DG defendants' submissions in that regard will not be considered in the action at bar.

Nevertheless, at this juncture based upon the determination as noted above with reference to BOM's and Geneva's interests, plaintiff has not established that it has priority over Aurora's apparently secured lien.

This question is a troublesome one which the undersigned would prefer addressing separately from the myriad issues raised in plaintiff's instant application and upon defendant Aurora's own motion to dismiss should it choose to bring one at this time.

To the extent that discovery may have been suspended pending this decision, the parties are to resume joint disclosure and depositions may be taken under both actions.

Accordingly, plaintiff's motion is granted in part and denied in part as set forth above.

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Patient Files Assistance Denial

July 14, 2015,

I. Matter of St. Francis hospital, as attorney-in-fact for JL.

A New York Family Lawyer said for approximately two weeks in May, 1977, JL was a patient at St. Francis Hospital. He incurred a bill of $4,794.90 and applied for medical assistance. The Nassau County Department of Social Services, however, declared him ineligible and his application was denied. He appealed the denial and, after a fair hearing which he attended along with an attorney retained by the hospital, the State Department of Social Services affirmed the determination of the local agency.

Thereafter, JL executed a power of attorney to St. Francis under which the hospital has now commenced this article 78 proceeding as his attorney-in-fact to review and annul the determination of his ineligibility. It is alleged that the determination, Inter alia, was arbitrary and capricious.

A New York Divorce Lawyer said at the outset, we are confronted with the threshold issue of whether St. Francis has standing to maintain this proceeding. Respondents, relying primarily on the Court of Appeals decision in Matter of Peninsula Gen. Nursing Home v. Sugarman, contend that, even under a power of attorney, a provider is prohibited from bringing an article 78 proceeding to review an agency's determination, and may seek relief only by way of a plenary action. We disagree.

A New York Divorce Lawyer said in Peninsula, a voluntary not-for-profit nursing home applied for Medicaid coverage on behalf of one JS, a former resident at the home. The application was denied by the local agency and both the nursing home and JS's family submitted requests for a fair hearing. When JS died prior to the scheduled date of the hearing, his family withdrew its challenge to the agency's determination. The State Department of Social Services thereupon canceled the fair hearing taking the view that the nursing home had no independent right to administrative review. The nursing home then commenced an article 78 proceeding seeking an opportunity for a fair hearing in its own right. Special Term granted the petition and ordered that the department hold a hearing. The Appellate Division, First Department, affirmed, with Mr. Justice Lane, joined by Presiding Justice Murphy, dissenting. On appeal, the Court of Appeals reversed and dismissed the petition on the dissenting opinion of Justice Lane.

A Brooklyn Family Lawyer said Justice Lane's dissent at the Appellate Division was based largely on the view that, because a provider of services did not come within the purview of the statutes and regulations governing administrative review, the nursing home could not claim the benefit of those provisions in challenging the determination of ineligibility. Justice LANE wrote:

"the interested party within the intendment of the statute is the 'eligible,' as defined in section 366 of the Social Services Law and not the provider of services.

"A provider such as the petitioner is entitled to payment only to the extent that it has afforded goods or services to an 'eligible.' If, as in the case at bar, it develops that services have been provided to one deemed ineligible for benefits, a cause of action may be spelled out against that ineligible or even against the governmental agency designated to declare ineligibility. However, vindication of that claim, available as it is in a plenary suit, need not be afforded through the medium of administrative review.

"The unilateral private financial interest of the nursing home in recovering expenditures made for services rendered creates a relationship of purchaser and seller. A breach of this relationship would give rise to a plenary suit for breach of contract".

A Bronx Family Lawyer said in our view, Peninsula is plainly distinguishable from the case at bar. The crux of the Peninsula holding is that administrative review is unavailable to providers whenever they act solely in their own right with the exclusive purpose of vindicating their "unilateral private financial interest." We do not read Peninsula, however, as precluding a provider's participation in the review process under all circumstances.

In the case at bar the posture of the provider's participation is significantly different. Unlike in Peninsula, the patient's interests here are very much at stake. The patient is alive and owes a debt to St. Francis for which he will remain responsible in the event that the finding of his ineligibility is sustained. He appeared at the fair hearing and expressed a desire to have his interests represented by the attorney retained by the hospital. Thereafter, he executed a valid power of attorney empowering St. Francis to seek, On his behalf judicial review of the determination of his ineligibility. Hence, the provider's participation is not limited to the vindication of its own interests. Instead, it appears as the designated agent and representative of the patient, selected by him to defend his rights. That the interests of the patient and provider may coincide is insufficient reason to deprive the patient of the agent of his choice.

We hold, therefore, that Peninsula is inapposite and presents no bar to a proceeding brought by a hospital as attorney-in-fact for its patient.

Our decision in Matter of North Shore Univ. Hosp. is not to the contrary. That case turned on the fact that the power of attorney under which the hospital sought to act had been executed not by the patient but by his estranged wife after his death. Since she had not been a member of her husband's family household, she was without standing to seek administrative review of the determination of his ineligibility. Consequently, she could not grant to the hospital greater rights then she herself possessed.

In our view, then, neither Peninsula nor North Shore precludes St. Francis from maintaining the instant proceeding. Moreover, we are convinced that, under the circumstances at bar, prohibiting the hospital from seeking judicial review as attorney-in-fact for the patient would run counter to the language of controlling statutes and regulations and to the broad purposes underlying the Medicaid legislation.

The relevant statutes generally provide that action may be taken on the applicant's behalf by his authorized representative. Thus, for example, subdivision 1 of section 366-a of the Social Services Law provides, in pertinent part:

"Any person requesting medical assistance may make application therefor in person, Through another in his behalf or by mail".

Likewise, in the event of an adverse determination of the application: "Any applicant for medical assistance or any individual authorized to act on behalf of any such person, may appeal to the department from decisions of social services officials or failures to make decisions.

Similarly, regulations of the department also permit a representative to act in the applicant's stead. The application form itself may be completed and certified by a representative; a representative may review the agency's case record; he may appear at a fair hearing in place of the applicant; and he may even gain access to the confidential record of the fair hearing, including the recommendations of the hearing officer.

These provisions, which allow an applicant to rely on his chosen representative, clearly promote the declared policy of the legislation to facilitate the application for, and the provision of medical assistance. And, in our judgment, respondents have offered no convincing reason for restricting the class of authorized representatives to all but those connected with a providing institution. Nor, in the absence of contrary legislation, do we see any reason for refusing to permit an applicant to rely on an appropriately authorized representative to seek judicial review of an adverse determination.

Here, the patient has executed a valid power of attorney naming the provider as his agent to seek reversal of the denial of his application for medical assistance. In so doing, he has recruited a willing and expert representative, free of charge, to vindicate his claim for government aid. The power of attorney creates an agency relationship under which the provider is obligated to give first allegiance to the patient's interests. If the hospital is successful, the patient will be relieved of the burden of a debt he cannot afford to pay.

On the other hand, were we to bar the hospital's participation even under a valid power of attorney, the consequences to the indigent patient might be serious indeed. If he chose to seek judicial review of the agency's determination, he would have to secure independent counsel. If he chose not to challenge the determination, he would likely find himself compelled to defend in a plenary action brought against him by the hospital, his would-be agent. In addition, faced with the prospect of having to rely on the efforts of the patient alone to seek judicial review of an adverse determination or, alternatively, of having to bring a plenary suit against the indigent patient himself, hospitals might well be inclined not to extend services to persons who lack independent means to pay for their care.

We are unpersuaded that any case law, statute or public policy requires or suggests that we must help bring about these undesirable consequences by denying indigent patients the right to execute an effective power of attorney to a hospital under circumstances such as those at bar.
Accordingly, we hold that St. Francis has standing to maintain this article 78 proceeding as attorney-in-fact for JL, and we turn to the merits of the petition.

The reason given for the denial of JL's application was that he had failed to submit verification of the cash value of his life insurance policy. When he applied for medical assistance, he listed a $2,500 policy on the application form. By letter dated August 12, 1977, the Nassau County Department of Social Services requested that he submit a number of specified documents, including a letter from the insurance company verifying the cash value of the policy.

On August 31, 1977 JL appeared for a face-to-face interview. He submitted various documents, but not the insurance verification. The examiner accepted the papers and requested two additional documents, a wage form and a copy of a new support order issued in connection with JL's divorce. According to uncontradicted evidence at the fair hearing, JL then asked the examiner if the two documents were all that remained for him to submit in connection with his application. The examiner answered in the affirmative, and JL subsequently submitted the additional documents.

In a letter dated September 15, 1977, the agency notified JL that his application had been denied. The letter stated that, because the insurance verification had not been submitted, the agency had been unable to determine eligibility.

Upon receiving this notification, JL called the agency and offered to bring in the policy. His offer was refused. He later produced the policy at the fair hearing, and it turned out to have a face value of only $2,000 rather than the $2,500 set forth in his original application. The available resource on the policy was $50.

On these facts, we hold that the determination challenged here was arbitrary and capricious. Mr. JL's failure to provide the requested verification was attributable to the misleading advice given him by the local agency's examiner. Under these circumstances it was an abuse of discretion for that agency to refuse JL's tender of the policy and for the State agency to affirm in view of Mr. JL's presentation of the policy at the fair hearing.

Accordingly, the petition should be granted to the extent that the determination should be annulled, and the matter remitted to the Nassau County Department of Social Services for a re-evaluation of JL's eligibility for medical assistance.

II. Matter of North Shore Hospital, as attorney-in-fact for ES.

North Shore Hospital has also brought its proceeding on behalf of one of its former patients, ES, pursuant to a power of attorney executed by her. For the reasons stated above, we hold that the hospital has standing to maintain the proceeding.

The local agency here requested Mrs. ES to submit "utility bills" and "mortgage statement; property and school tax bills" by April 20, 1977. There is no indication in the agency file that Mrs. ES ever complied with this request. On April 25, 1977 her application for medical assistance was denied upon the ground that the agency was unable to determine eligibility because of her failure to supply the requested documentation.

Instead of requesting a fair hearing, Mrs. ES reapplied for medical assistance. On May 20, 1977 the local agency requested that on or before June 5, 1977 she supply two letters of residence from someone other than a relative, verifying the length of time she had resided at her stated address. Again, the local agency case file contains no indication that Mrs. ES ever complied with this request and on June 6, 1977 her second application was denied.

A fair hearing was requested and an attorney for the hospital attended. He stated that on June 7, 1977 he had called the caseworker handling Mrs. ES's application and had told her that "the information had been obtained and was on its way in the mail." The attorney did not testify as to personal knowledge of the date and circumstances of the alleged mailing, he did not present the testimony of anyone with such knowledge, and he failed to produce any copies of the letters of residence which were alleged to have been mailed.

The representative of the local agency produced the agency's file on Mrs. ES's application. It did not contain copies of the letters of residence or any notation of a telephone call from the attorney. The representative testified concerning the office practice of the local agency, stating that even if the letters of residence had been received after the application was denied, they would have been placed in the file. She testified further that, if the caseworker had had a telephone conversation concerning these documents, that fact would have been noted in the anecdotal record kept in the file.

On this record, we conclude that the petitioner has not met its burden of proving that Mrs. ES was eligible for medical assistance. The commissioner's determination that Mrs. ES had failed to submit timely the required proof of her eligibility, and therefore that her applications had been properly denied, is supported by substantial evidence and is neither arbitrary nor capricious.
III. Matter of South Nassau communities hospital, as attorney-in-fact for CD.

South Nassau Communities Hospital has likewise brought its proceeding on behalf of one of its former patients, CD, pursuant to her validly executed power of attorney. For the reasons previously stated, the hospital has standing to maintain the proceeding.

Petitioner's principal, CD, is a Spanish national who entered this country in 1972 on a non-immigrant visa expiring on May 3, 1976. The proof established that on June 26, 1975, prior to the expiration of her visa, Mrs. CD applied for an immigrant visa through the offices of the United States Consul General at St. John's, Newfoundland. Her application indicated that she was still residing in the United States. In March of 1976, Mrs. CD responded to a communication from the Consulate requesting certain documents and the completion of certain forms. In June, 1976, after the expiration of her non-immigrant visa, the Consulate in St. John's wrote to Mrs. CD at her address in the United States. She was informed that the office in St. John's was closing, that her application for a visa was being transferred to the American Consulate General in Montreal, and that delays in processing the application were due to the transfer of the file. Apparently, Mrs. CD received no further communication concerning her immigrant visa application before February, 1977, when she became a patient at the hospital. Thereafter Mrs. CD applied for medical assistance. Her application was denied upon the ground that she had failed to submit sufficient evidence establishing her lawful residence in the United States as required by section 131-k of the Social Services Law.

In Matter of Papadopoulas v. Shang, the Appellate Division, First Department, faced with a similar denial of medical assistance to an alien, stated:

"Respondents base their denial of benefits to petitioner on (subdivision 1 of) section 131-k of the Social Services Law which, in pertinent part, provides that 'an alien who is unlawfully residing in the United States' shall not be eligible for medical assistance. In so doing, however, it overlooks the provisions of 45 CFR (Code of Federal Regulations s) 248.50, under which the Department of Health, Education and Welfare conditioned approval of the plan. That regulation specifies that any plan must be limited to eligible persons who are citizens of the United States, aliens lawfully admitted to this country for permanent residence or otherwise Permanently residing here under Color of law. That regulation, in its application to the States, has the force of Federal law.
"In construing the term 'color of law' the court noted that it included 'actions not covered by specific authorizations of law. It embraces not only situations within the body of the law, but also others enfolded by a colorable imitation. "Under color of law" means that which an official does by virtue of power, as well as what he does by virtue of right. The phrase encircles the law, its shadows, and its penumbra. When an administrative agency or legislative body uses the phrase under color of law it deliberately sanctions the inclusion of cases that are, in strict terms, outside the law but are near the border. With regard to the term 'permanently residing' it added, a relationship may be permanent even though it is one which that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.

In our opinion Mrs. CD' entry into this country on a valid non-immigrant visa, her timely application for an immigrant visa, the correspondence with her by the consular service of the Department of State at her residence in the United States after the expiration date of her non-immigrant visa, and the failure of the Immigration and Naturalization Service to deport her, all impel the conclusion that at the time of her admission to the hospital Mrs. CD was residing in this country under color of law. Accordingly the local agency was in error when it denied Mrs. CD' application on the grounds stated, and a new determination is required.

Petition granted to the extent that the determination of the State Commissioner of Social Services, dated November 15, 1977, is annulled, on the law, without costs or disbursements, and the matter is remitted to the local agency for further proceedings in accordance with the opinion herein.

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Plaintiff Seeks Permanent Injunction

July 13, 2015,

A New York Family Lawyer said for a number of years the defendant has operated a junk yard on property located on U.S. Route 20, Town of Nassau in Rensselaer County. Over the years there have been disagreements between the Town and the petitioner with regard to the petitioner's operation of the junk yard and the Town's efforts to regulate it. In August 2002 the Town commenced an action against the petitioner in an attempt to enforce Town of Nassau Local Law No. 1 [1989] with regard to the licensing and regulation of junk yards. That action was ultimately resolved when the parties entered into a stipulation which was so-ordered by the undersigned on September 9, 2002. In May 2003 the Town of Nassau commenced the instant action against the defendant.

The action was temporarily halted when the parties, on November 8, 2004. entered into a Stipulation of Settlement which was so-ordered by the Court. That agreement, arrived at after much litigation and negotiation, memorialized a number of commitments on defendant's part regarding the manner in which he would operate and maintain the junk yard. By reason of defendant's violations of the November 8, 2004 Stipulation of Settlement the plaintiff, in June 2006, commenced an enforcement proceeding seeking to permanently enjoin the operation of the junk yard and for liquidated damages. On June 8, 2007 the Court, after a hearing, issued a permanent injunction prohibiting the defendant from further operation of the junk yard and awarding plaintiff liquidated damages.

A New York Divorce Lawyer said the Court found that the defendant failed to erect and maintain a twelve foot high perimeter fence as agreed to in the Stipulation of Settlement; that he used junk vehicles as "gates" for the fence; that he failed to remove motor vehicles from outside the perimeter fence; and that he failed to remedy violations within 48 hours of receiving notice thereof from the plaintiff. On June 26, 2008 the defendant entered into a contract with JB Car Services, Inc. ("JB Car bervices) to clean up of the property. A copy of the contract was forwarded to the attorney for the plaintiff. Under the contract, JB Car Services was to remove all cars, trucks, trailers, tires, equipment and miscellaneous metals by October 1, 2008. By letter dated September 18, 2008, plaintiffs counsel imposed a deadline of October 2, 2008 to complete the clean up. In furtherance of counsel's letter, on October 1, 2008 plaintiff caused its Building Inspector, RJ, to visit the junk yard for purposes of conducting an inspection. Mr. RJ observed numerous motor vehicles, auto parts, tires, buses, commercial trucks and truck part on the site. He observed vehicles stored within twenty-five feet of the property line. He noted that outdoor storage of vehicles violated a Town regulation requiring an approved site plan for such storage. As promised, by order to show cause dated October 3, 2008 plaintiff commenced the instant proceeding to hold the defendant in contempt of court by reason of defendant's continued operation of the junkyard in violation of the permanent injunction. The defendant submitted opposition to the application, and a hearing thereon was held on July 30, 2009.

A Queens Family Lawyer said the party seeking to hold another in contempt of court has the burden of proof. In order to support a finding of civil contempt based upon a violation of a court order, it is necessary to establish that a lawful court order clearly expressing an unequivocal mandate was in effect and that the party alleged to have violated that order had actual knowledge of its terms. Contempt should not be granted unless the order violated is clear and explicit and unless the act complained of is clearly proscribed. The mandate alleged to be violated should be clearly expressed, and when applied to the act complained of it should appear, with reasonable certainty, that it had been violated. Finally, it must be demonstrated that the offending conduct defeated, impaired, impeded, or prejudiced a right or remedy of the complaining party.

A Long Island Family Lawyer said the plaintiff called RJ as its only witness. Mr. RJ testified that when he visited the junk yard on July 28, 2009 he observed junk vehicles parked in front of the fence of the premises, and within the interior. He observed automobile parts within two of the vehicles: a trailer and a step van. He also observed trucks, trailer bodies and small piles of automobile parts at various locations within the site. Five photographs taken by Mr. RJ during his July 28, 2009 visit to defendant's property were received into evidence. Mr. RJ testified that one of the photographs depicted at least six junk vehicles within the enclosure; and that another photograph depicted approximately thirty such vehicles.

The defendant testified that on June 26, 2008 he entered into a contract with JP Car Services, Inc. to remove all vehicles, tires, equipment and scrap from the site. Under the contract, the defendant was to be paid a certain amount of money per ton of scrap metal removed. In his words JP Car Services was to "clear the entire property".

According to the defendant, JB Car Services commenced performance of the contract within a week of its signing and stayed on the job for approximately four months. The defendant testified that during this time some 1.400 tons of vehicles were removed from the site. He further testified that he released JB Car Services from the contract when the prices for scrap metal decreased so much that the defendant was placed in a position where he would have to pay JB Car Services to remove any more vehicles. The defendant indicated that soon after JB Car Services left the job, he made arrangements with an individual by the name of Donald Slovak to continue the removal of junk vehicles from his property. The defendant testified that he, together with the help of his son, his daughter and Mr. Slovak, removed vehicles from his property and transported them to a storage yard in the Town of Schodack. The defendant estimates that approximately one thousand cars were moved to the Schodack storage yard; and that approximately 3,000 vehicles have been removed from his junk yard site altogether. He testified that there are some 75 to 100 vehicles remaining on the site.

As relevant here, the June 8, 2007 court order recites as follows: "Ordered that defendant is permanently enjoined from operating a junkyard in the Town of Nassau. . ."

As pointed out by the plaintiff the Town of Nassau Junk Yard Ordinance contains the following definitions: "Junk Yard. Any place where the storage, collection or sale of any second-hand material of any kind or substance for salvage is handled, including motor vehicles or parts thereof as defined in Section 136 of the General Municipal Law, but not including antique furniture." "Junk Yard Operator. The owner, owners or lessee of any junk yard."

The defendant maintains that he ceased selling motor vehicle parts to members of the public upon issuance of the injunction on June 8, 2007, and that therefore he no longer operates a junk yard within the meaning of the injunction. This argument ignores the above definition of a junk yard, which includes a location within the Town where material for salvage is stored, and in so doing disregards the entire context from which all of plaintiff's enforcement efforts under the Town of Nassau Junk Yard Ordinance arose. Webster's II New College Dictionary includes the following definition for the term "salvage": "1. To save from loss or destruction. 2. To save damaged or discarded material for further use." It appears that the only reason vehicles were collected and stored on the defendant's property at any time was for purposes of salvage: that is, to sell the motor vehicle parts, the vehicles themselves, and scrap metal to a willing buyer, for some other and further use. The intrinsic nature of the vehicles, vehicle parts, and scrap as salvage did not undergo a change merely by reason that the defendant discontinued his sales of motor vehicle parts to members of the public. In the Court's view the defendant, by continuing to store salvage materials upon his property, continued to operate a junk yard within the meaning of the June 8, 2007 court order.

Turning to the issue concerning defendant's current non-ownership of the subject real property, as noted, during the pendency of the instant proceeding, on December 22, 2008, the defendant transferred the property to Barbara S. Secor, the mother of his children. The defendant testified on direct examination that the conveyance, made without consideration, was done so that his son could have the property. Notably, the defendant agreed on crossexamination that the purpose of the conveyance was to "get away from" the Town's thenpending enforcement proceeding. It is well settled that the inability of a party to comply with a court mandate will not excuse compliance where the party's own acts rendered compliance impossible. Separate and apart from the foregoing, there is no evidentiary showing that vehicles and scrap remaining on the subject premises were included as a part of the conveyance to Barbara S. Secor (and therefore now owned by her), and/or that they are now beyond defendant's possession or control. In sum, the Court finds no merit to the defendant's argument that he is unable to comply with the June 8, 2007 court order.

With regard to defendant's alleged violation of the June 8, 2007 court order, it has been held that where a party has made a good faith effort to comply with a judgment or order that the imposition of contempt sanctions is improper. In this instance, as noted, the defendant hired JB Car Systems to clean up the premises in late June 2008. Said contractor removed roughly 1,400 tons of scrap from the site. When the price of scrap metal declined, the defendant did not cease his clean-up efforts, but rather made an arrangement with Donald Slovak to continue the work. In addition, the defendant, together with members of his family, made a significant personal effort to remove vehicles and debris from the site. Defendant estimated that a total of 3.000 vehicles were removed from his property, with 75 to 100 vehicles currently remaining. Thus, by the time the plaintiff commenced the instant proceeding, the defendant had removed well over 95% of the vehicles from the site. Additionally, there is no evidence that the defendant said or did anything to suggest that he would discontinue his efforts to clean up the site after October 1, 2008. The Court finds, under principles of fairness and equity, that the defendant made a good faith effort to comply with the June 8, 2007 court order, and that he had substantially complied with the order as of October 1, 2008.

One final point should be made. In theory, the defendant was in violation of the June 8, 2007 order as soon as it was issued. Notwithstanding this fact, he could not be held in contempt of court until a reasonable time had transpired after issuance of the permanent injunction to enable him to comply. While it is evident that the defendant's efforts at cleaning up the property were indeed belated, the Court without in any manner condoning the delay cannot ignore the fact that the defendant embarked upon the clean up operation in earnest within two weeks after the June 12, 2008 order of the Appellate Division; and that up to the date of commencement of the instant proceeding he had made significant progress. Under such circumstances, and mindful that no specific deadline was mentioned in the June 8, 2007 order, it would be improper to hold the defendant in contempt.

The Court concludes that the application to hold defendant in contempt must be denied. This does not mean, however, that the defendant has fully complied with the June 8, 2007 order. To the contrary, it is evident from the record that he has not. The Court finds that a deadline should be imposed in order to bring this matter to conclusion. The Court will direct that all vehicles, trailers, tires, scrap metal and other debris be removed from the site on or before December 1, 2009.

Accordingly, it is ordered, that the motion to hold the defendant in contempt of court is denied; and it is ordered, that the defendant is directed to complete removal of all vehicles, trailers, tires, scrap metal and other debris from the subject real property on or before December 1, 2009.
This shall constitute the decision and order of the Court. The original decision/order is returned to the attorney for the defendant. All other papers, other than the hearing transcript and exhibits, are being delivered to the Supreme Court Clerk tor delivery to the County Clerk or directly to the County Clerk for filing. Exhibits are being returned directly to the respective parties. The signing of this decision/order and delivery of this decision/order does not constitute entry or filing under CPER Rule 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.

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Plaintiff Claims There is No Triable Issue of Fact

July 12, 2015,

A New York Family Lawyer said the defendant moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiff's verified complaint as there exists no triable issue of material fact with respect to the defendant's liability for the plaintiff's alleged injuries. The plaintiff cross moves for an order pursuant to CPLR 3025 (b) granting the plaintiff leave to amend the verified complaint to plead with further clarification the relationship between the defendant and the Old Brookville Police Department, and an order pursuant to CPLR 3212 granting summary judgment on the plaintiff's cause of action for false arrest and false imprisonment. Both parties oppose the other party's motion. The plaintiff seeks damages in the underlying action for personal and emotional injuries sustained on August 2, 2005, incident to the plaintiff's alleged false arrest and false imprisonment by the Old Brookville Police Department.

A New York Divorce Lawyer said on August 2, 2005, the plaintiff resided with his wife at their home in Old Brockville. The couple were in the midst of a divorce, and the wife filed a petition in the Nassau County Family Court, under docket number 8265/05, dated July 29, 2005. The wife sought an order of protection against the plaintiff husband in that Family Court proceeding, and the Court issued an order of protection dated November 23, 2005, to wit ordering the plaintiff, date of birth January 1, 1942, to observe the following conditions of behavior: refrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense against the petitioner, date of birth December 5, 1961, wherever the petitioner may be; observe such other conditions as are necessary to further the purposes of protection: the respondent husband to stay away from the petitioner's bedroom. The Family Court directed the order of protection against the respondent husband remain in effect up to and including May 22, 2006. On August 2, 2005, at approximately 12:20 p.m.
The attorney for the defendant states, in a supporting affidavit dated June 1, 2007, the defendant is entitled to summary judgment because none of the allegations contained in the plaintiff's verified complaint are directed at the defendant, The Incorporated Village of Old Brookville. The attorney for the defendant states, assuming arguendo, the Court construes the complaint to set forth a cause of action against the defendant, summary judgment is still warranted because the plaintiff's arrest was a civilian arrest effected by the plaintiff's wife pursuant to CPL § 140.30 (1) (b), hence there is no conduct that can be attributed to the defendant or the Old Brookville Police Department for which they could be liable. The attorney for the defendant maintains, even if the arrest is deemed to have been effectuated by the Old Brookville Police Department, the arrest was made pursuant to probable cause which renders the plaintiff's claims for false arrest and false imprisonment insupportable, as a matter of law. The attorney for the defendant asserts, to the extent the plaintiff was arrested by the Old Brookville Police Department, CPL § 140.30 (1) (b) affords the arresting officers complete immunity from suit. The attorney for the defendant avers the plaintiff's cause of action for intentional infliction of emotional distress must be dismissed because public policy bars such a claim against a governmental entity like the defendant.

A Nassau Family Lawyer said the attorney for the plaintiff states, in an affirmation dated August 22, 2007, in support of the cross motion and in opposition to the defense motion, the Old Brookville Police Department improperly arrested the plaintiff without a warrant in violation of CPL § 140.10 (1) (b) for the crime of allegedly violating a protective order that the Old Brookville Police Department knew or should have known was never served upon the plaintiff. The attorney for the plaintiff states, after the plaintiff's arrest and sometime during the plaintiff's wrongful confinement, the Old Brookville Police Department charged the plaintiff with the violation offense of harassment in the second degree, even though the Old Brookville Police Department knew the plaintiff had not committed the alleged violation in their presence as required by CPL § 140.10 (1) (a). The attorney for the plaintiff asserts the plaintiff's arrest and confinement by the Old Brookville Police Department was in complete contravention of CPL § 140.10 (1) (a) and (b), and the plaintiff's admitted assistance of the Old Brookville Police Department of the purported civilian arrest by the plaintiff's wife was improper under CPL § 140.10 (1) (b).

The attorney for the defendant states, in a reply affidavit dated August 29, 2007, this affidavit is submitted in response to the plaintiff's opposition papers, further support of the defense motion for summary judgment pursuant to CPLR 3212, and in opposition to the plaintiff's cross motion for summary judgment which also seeks leave to file an amended complaint. The attorney for the defendant contends the plaintiff's assertion his arrest was unlawful regardless of who arrested him is a misapprehension of the relevance of the CPL sections completely ignoring the existence of probable cause which defeats any claims for false arrest and false imprisonment as a matter of law. The attorney for the defendant argues against the plaintiff's alternative contention that notwithstanding the existence of probable cause the defense motion should be denied because questions of fact allegedly exist with respect to an alleged coverup by the Old Brookville Police Department surrounding the arrest charges.

A Staten Island Family Lawyer said the attorney for the defendant points out the plaintiff did not submit any evidence in support of self serving allegations against the Old Brookville Police Department. The attorney for the defendant maintains, even if the Court accepts as true the plaintiff's speculative accusations against the Old Brookville Police Department, summary judgment should still be granted in favor of the defendant because, as a matter of law, the legality of the arrest does not hinge upon whether probable cause existed for the specific offense invoked by the arresting police officer at the time of the arrest, but upon whether the facts known by the arresting officer objectively provided probable cause to make an arrest. The attorney for the defendant avers, even if the plaintiff originally was arrested for an offense other than Harassment in the Second Degree, and even if the charge was later changed, probable cause existed for an arrest such that the plaintiff's causes of action for false arrest and false imprisonment should be dismissed, as a matter of law. The attorney for the defendant argues the plaintiff has failed to raise a genuine issue of material fact necessary to overcome the defendant's prima facie showing of entitlement to summary judgment.

CPL 140.30 authorizes an arrest by a private person: "(1)(a) For a felony when the [arrested person] has in fact committed such felony and (b) for any offense when [the arrested person] has in fact committed such offense in his presence." Under CPL 1.20 and Penal Law § 10.00(1) an offense" means conduct for which a sentence to a term of imprisonment or to a fine is provided" by statute, local law, ordinance, order, rule or regulation. A private detective has only the right of a private person with respect to arrest, Dohery v. Lester, a private citizen who makes an arrest does so at his/her peril and if the person arrested did not commit the crime, the private citizen who makes the arrest is liable despite probable cause, and neither good faith nor vindictiveness is relevant except on the issue of punitive damages, Gill v. Montgomery Ward & Co., requires that the person arrested must, without unnecessary delay, be taken before a magistrate or delivered to a peace officer, and failure to do so will result in liability under the doctrine of trespass ab initio discussed below.

Commentaries Family Court Act § 812 provides: The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant's election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section.

Penal Law § 240.26 (3) provides: A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose. Harassment in the second degree is a violation.

The action for false imprisonment is derived from the ancient common-law action of trespass and protects the personal interest of freedom from restraint of movement. Whenever a person unlawfully obstructs or deprives another of his freedom to choose his own location, that person will be liable for that interference. To establish this cause of action the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged. The great weight of authority, including New York, recognizes the rule that neither actual malice nor want of probable cause is an essential element of an action for false imprisonment. This is in direct contrast with the elements comprising a malicious prosecution action.

The tort of malicious prosecution protects the personal interest of freedom from unjustifiable litigation. The essence of malicious prosecution is the perversion of proper legal procedures. Thus, it has been held that some sort of prior judicial proceeding is the Sine qua non of a cause of action in malicious prosecution. Such a judicial proceeding may be either an evaluation by a Magistrate of an affidavit supporting an arrest warrant application, or an arraignment or an indictment by a Grand Jury. The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice. Where the plaintiff institutes a malicious prosecution action he must plead the lack of probable cause. A contrary rule would be against public policy as tending to discourage prosecutions for crime or the vindication of civil rights. Despite the clear and fundamental differences between malicious prosecution and false imprisonment, the concepts are easily intermingled in the arrest situation Broughton v. State.
CPL § 140.30 provides: 1. Subject to the provisions of subdivision two, any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence; 2. Such an arrest, if for a felony, may be made anywhere in the state. If the arrest is for an offense other than a felony, it may be made only in the county in which such offense was committed.

CPL § 140.35 provides: 1. A person may arrest another person for an offense pursuant to section 140.30 at any hour of any day or night. 2. Such person must inform the person whom he is arresting of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical. 3. In order to effect such an arrest, such person may use such physical force as is justifiable pursuant to subdivision four of section 35.30 of the penal law.

CPL § 140.40 provides: 1. A person making an arrest pursuant to section 140.30 must without unnecessary delay deliver or attempt to deliver the person arrested to the custody of an appropriate police officer, as defined in subdivision five. For such purpose, he may solicit the aid of any police officer and the latter, if he is not himself an appropriate police officer, must assist in delivering the arrested person to an appropriate officer. If the arrest is for a felony, the appropriate police officer must, upon receiving custody of the arrested person, perform all recording, fingerprinting and other preliminary police duties required in the particular case. In any case, the appropriate police officer, upon receiving custody of the arrested person, except as otherwise provided in subdivisions two and three, must bring him, on behalf of the arresting person, before an appropriate local criminal court, as defined in subdivision five, and the arresting person must without unnecessary delay file an appropriate accusatory instrument with such court.

CPL § 140.10 (1) provides: Subject to the provisions of subdivision two, a police officer may arrest a person for: (a) Any offense when he has reasonable cause to believe that such person has committed such offense in his presence; and (b) A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.
CPL § 140.10 (2) provides: A police officer may arrest a person for a petty offense, pursuant to subdivision one, only when: (a) Such offense was committed or believed by him or her to have been committed within the geographical area of such police officer's employment or within one hundred yards of such geographical area; and (b) Such arrest is made in the county in which such offense was committed or believed to have been committed or in an adjoining county; except that the police officer may follow such person in continuous close pursuit, commencing either in the county in which the offense was or is believed to have been committed or in an adjoining county, in and through any county of the state, and may arrest him in any county in which he apprehends him.

And, CPL § 140.10 (4) provides, in pertinent part: Notwithstanding any other provisions of this section, a police officer shall arrest a person, and shall not attempt to reconcile the parties or mediate, where such officer has reasonable cause to believe that: (b) a duly served order of protection or special order of conditions issued pursuant to subparagraph (i) or (ii) of paragraph (o) of subdivision one of section 330.20 of this chapter is in effect, or an order of which the respondent or defendant has actual knowledge because he or she was present in court when such order was issued, where the order appears to have been issued by a court of competent jurisdiction of this or another state, territorial or tribal jurisdiction; and (i) Such order directs that the respondent or defendant stay away from persons on whose behalf the order of protection or special order of conditions has been issued and the respondent or defendant committed an act or acts in violation of such "stay away" provision of such order; or (ii) The respondent or defendant commits a family offense as defined in subdivision one of section eight hundred twelve of the family court act or subdivision one of section 530.11 of this chapter in violation of such order of protection or special order of conditions...No cause of action for damages shall arise in favor of any person by reason of any arrest made by a police officer pursuant to this subdivision, except as provided in sections seventeen and eighteen of the public officers law and sections fifty-k, fifty-l, fifty-m and fifty-n of the general municipal law, as appropriate.

When an arrest is made without a warrant, as here, a presumption arises that it was unlawful, and the burden of proving justification is cast upon the defendant.

CPL § 140.10 provides, in pertinent: 1. Subject to the provisions of subdivision two, a police officer may arrest a person for: (a) Any offense when he has reasonable cause to believe that such person has committed such offense in his presence; and (b) A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise. 2. A police officer may arrest a person for a petty offense, pursuant to subdivision one, only when: (a) Such offense was committed or believed by him or her to have been committed within the geographical area of such police officer's employment or within one hundred yards of such geographical area; and (b) Such arrest is made in the county in which such offense was committed or believed to have been committed or in an adjoining county; except that the police officer may follow such person in continuous close pursuit, commencing either in the county in which the offense was or is believed to have been committed or in an adjoining county, in and through any county of the state, and may arrest him in any county in which he apprehends him.

CPLR 3212 provides, in pertinent: (a) Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown. (b) Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

Probable cause to arrest requires the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed and that the defendant committed or is committing that offense. While probable cause for a warrantless arrest may be supplied, in whole or in part, by hearsay information, the two components of the Aguilar/Spinelli test—(1) that the informant has some basis of knowledge for the information transmitted to the police, and (2) that the informant is reliable—must be demonstrated.

Although "probable cause may be supplied, in whole or part, through hearsay information", where the police rely upon secondhand information provided by an informant, the Aguilar-Spinelli rule requires a demonstration that the informant had some basis of knowledge for the information given to the police, and that the informant is reliable.

It is well settled that information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest.

We also point out that there are adequate safeguards against the rendition of false information. The affidavit, such as was submitted by the informer, on its face, contained a warning that the giving of a false statement constituted a violation of the Penal Law. The averments made by the informant were then declarations against his penal interest. The threat of possible prosecution in this case was not an empty gesture, as the police had the informant's name and address, and could track the informer down if necessary. Nor is criminal punishment the only sanction that might be imposed. An informer may be subject to civil damages for malicious prosecution where he furnishes false information causing a person's premises to be unlawfully searched.

People v. Hicks, under the facts and circumstances of this case, this Court finds the officer had probable cause to arrest the defendant, but it was the plaintiff's spouse who effected the arrest albeit the police assisted.

As to the cross motion, CPLR 3025 (b) provides, in pertinent: A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.

However, this Court has carefully reviewed and considered all of the submission of the parties on the motion and cross motion. This Court finds there exists no triable issue of material fact with respect to the defendant's liability for the plaintiff's alleged injuries.

It is well settled that a plaintiff cannot prevail on causes of action based upon false arrest, false imprisonment, and malicious prosecution against police officers if the police officers had probable cause to believe that the plaintiff committed the underlying crime. "Generally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest".

Accordingly, the motion is granted, and the cross motion is denied.

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Court Looks at Order to Show Cause to Discontinue Medical Treatment

July 11, 2015,

A New York Family Lawyer said the petitioner having applied to this Court for an Order directing DH (the "Patient"), a patient at Nassau University Medical Center (the "Medical Center"), to show cause why an Order should not be granted authorizing or discontinuing medical treatment for the Patient as set forth in the petition and this application having come on to be heard before the undersigned, a Justice of the Supreme Court of the State of New York, County of Nassau, on the 14th day of November, 2006.

NOW, upon the petition of AG, as President and CEO of the Medical Center, verified on November 13, 2006, and the affirmation of PC, M.D., dated November 13, 2006, and upon the order to show cause granted on November 13, 2006, together with due proof of service thereof, and Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, Allan E. Silver, Esq., of counsel, attorneys for the Medical Center, appearing in support of the application, and David A. Smith, Esq., acting as the Court appointed guardian ad litem, appearing herein to protect the rights and interests of DH, the parents of DH, MD and DH appearing in support of their request to discontinue medical treatment for their son, and a hearing having been held upon the issues raised herein, the court makes the following findings of fact and law.

A New York Divorce Lawyer said DH is a fourteen-year-old boy, suffering from Hunter Syndrome, a serious genetic disorder. Hunter Syndrome is, according to his treating physician's testimony, an enzymatic defect with a build up of mucopolysacchardies in the connective tissue. He suffers from various defects in bone, cartilage and connective tissue, as well as a seizure disorder, congenital heart disease and valve insufficiency in the mitral and aortic valves. The defects in the aortic and mitral valve will eventually be fatal. D also suffers from an enlarged liver and spleen as well as characteristic facial features, including an enlarged tongue. The disease affects the airways, trachea and large bronchial tubes, in that the structural support disappears and they collapse. There is no known cure and the Doctor testified that the disease will be fatal within the next two years.

A Westchester County Family Lawyer was admitted to Nassau University Medical Center (NUMC) on June 13, 2006 because he was experiencing difficulty breathing. Within a day of admission, he was placed on a ventilator to enable him to breathe. After he was tracheid, in order to stop aspiration, which had begun, a feeding tube was inserted into his stomach (PEG tube). His condition is considered stable. He is alert, tracks people with his eyes, recognizes his mother and seems to enjoy cartoons and video tapes. Doctor PC testified that D is completely aware.

A Suffolk County Lawyer said it is generally not in pain, though he makes it known that he does not like to be suctioned. He experiences pain when he is moved because he is edematous. His connective tissue is filled with water, making him very tight. He is not on any pain medication due to the fleeting nature of the pain, which according to the testimony is felt when he is moved, washed or suctioned.

D was not present for the hearing, however the Court did visit the patient in the pediatric ICU. The Court was advised that D had been suctioned shortly before our arrival at his bedside. He appeared to be resting comfortably, in no obvious distress, though his breathing did seem labored.

Lauri Haufler, nurse manager of the pediatric ICU, testified regarding D's condition. She explained that D is awake, responds to tactile stimulation, tracks and looks at cartoons and movies and tracks his parents when they visit him. She testified that his face brightens when he sees his parents, which in her mind indicates that he is happy to see them. She has observed that he is calm when watching videos and that if he watches videos after he is washed or suctioned his heart rate goes right down and he is relaxed and breathes more easily.

D's mother and father both testified that they understood that removing the ventilator would hasten D's death, but felt that this was in his best interests to end his suffering. Ms. D testified that D has come to her in her dreams and has encouraged her to let him go and to accept her newborn daughter. D is always happy and at peace in her dreams.

There can be no doubt that Ms. D is a devoted mother and has taken extraordinary care of D. She worked closely with doctors and nutritionists as D's condition deteriorated and his ability to eat or drink was curtailed. She massaged D to give him comfort. There is no question that she and her husband want what is best for D. They are aware that his disease is progressive and that he is likely nearing the end of his life. Ms. D visits D every day in the hospital and was his primary caregiver until he was admitted.

Upon Ms. D's request to remove D from the respirator and to end other medical care, Dr. PC requested that the hospital's medical ethics committee review the case. Dr. PC was not in agreement with the parents' decision. Dr. Mondschein, the chairman of the medical ethics committee, testified in this matter. He and a team of two other people, a priest and a nurse, reviewed the medical record and saw the child.

Dr. Mondschein testified that he was experienced in pediatrics, though he was now serving in an administrative position at the hospital. The nurse on the team was not a pediatric nurse. Dr. Mondschein was not familiar with Hunter Syndrome except in a general way and had no experience with it in his practice. In fact, he took out a book on inherited diseases for the other members of the team and he "reviewed it quickly." When asked about which congenital defects D suffers from, he stated that he "didn't go into that." He indicated that D was awake, but would not call him alert. Dr. Mondschein could not ascertain whether D could track him with his eyes or whether he felt pain. The committee also met with Ms. D, who expressed her concerns to the committee.

The concerns considered by the committee included Ms. D's fourteen years of being the sole caretaker of D and her opinion that he was in pain and discomfort and that this was being prolonged by artificial means, due to the respirator. Ms. D was also concerned that because of the pending transfer of D to a nursing home in Suffolk County she would not be able to care and comfort him every day, that the new caregivers would not understand what was going on with D and the discomfort he might be feeling, nor would they be able to interpret his needs. She was also concerned with how God would see her in making this decision. The priest serving on the committee advised Ms. D that if she made this decision with love in her heart for the child, then God will not judge her harshly.

The members of the ethics committee independently came to the conclusion that the mother's decision was an ethical one, since it was based upon her feeling for the child and her concern for the well-being of her child. Dr. Mondschein testified that removing the ventilator would hasten the dying process. When asked if that was a course of treatment, he indicated that "not doing is also treatment." Dr. Mondschein was aware of Dr. PC's opinion that the ventilator should not be removed because D is "no where near terminal" and opined that this is a very hard decision. Ultimately, Dr. Mondschein indicated that based upon his overall review of the medical records, speaking with the parents and seeing D, it was his professional opinion that it would be an acceptable course of treatment to stop the ventilator and to provide palliative care and pain relief, while the dying process occurs.

Dr. PC is the director of pediatric critical care at NUMC. He is board certified in pediatric medicine and is board eligible for a fellowship in pediatric critical care and has completed a fellowship in ambulatory pediatrics. He has examined D and reviewed his records daily since admission in June. After consulting with D's parents, Dr. PC wrote a "Do Not Resuscitate" Order (DNR) on June 26, 2006. The Doctor believes it is still medically appropriate to continue the DNR order because "resuscitation would impose an extraordinary burden on the patient in light of the patient's medical condition and the expected outcome of the resuscitation for the patient" in that if D suffered "cardiac arrest, all that anoxia would cause more damage and bringing him back would add more damage to an already damaged system."

Dr. PC testified, however, that it is not medically appropriate to remove the ventilator at this time because D is alert and can sense his surroundings. The Doctor is aware that D is eventually going to die, but stated that the patient is not medically at the point where he is unresponsive. Dr. PC has been involved in removing the ventilator from other patients, but they have always been comatose. He said "being in a coma is absolutely nothing, no quality of life, but D enjoys looking at TV, is attentive he knows you are there and it is very hard. He is completely aware." Dr. PC would feel very uncomfortable removing the ventilator from D because he is "a child awake who cannot express his wishes."

The Guardian ad litem, David A. Smith testified in the narrative form. Mr. Smith acknowledged the cooperation of all parties and the superb care that D was receiving at the hospital. He reported that Dr. Mondschein's note in the chart on November 7, 2006 indicated the ethics team feel that the mother speaking for herself and her husband are not unethical in requesting their son be weaned from the respirator. We feel that this difficult decision was carefully thought out by them and should be supported." Mr. Smith utilized the standard set forth by the Court of Appeals in Haufbauer, wherein a neglect petition was denied because the court found that ultimately, however, the most significant factor in determining whether a child is being deprived of adequate medical care and, thus, a neglected child within the meaning of the statute, is whether the parents have provided an acceptable course of treatment for their child in light of the surrounding circumstances". Mr. Smith was supportive of the parents' decision to remove D from the respirator in light of the testimony of Dr. Mondschein on behalf of the hospital's ethics committee.

There is no neglect proceeding pending or contemplated, but given the lack of case law or statute governing this sensitive and heart wrenching issue, the reliance on the Hofbauer analysis was a thoughtful one, offering some guidance in this challenging and murky area of the law.
Since the 1960's the miracles of modern medicine and science have had significant impact on life and death and blurred the line between the two. Members of our society now enjoy a healthier and longer life. Conditions, which would have resulted in certain death, are now treatable and curable. On the other hand, people can be kept alive through artificial means without any hope of recovery, cure or even improvement in their condition. The ability of doctors to artificially keep bodies alive after the brain and other organs have ceased to function normally has given rise to many ethical and moral dilemmas and arguments, with no clear answers.
The use of artificial means to keep people alive has been a controversial topic, which has riveted and divided the nation. Sonny Von Bulow, Karen Ann Quinlan and Terri Schiavo became household names as the media extensively covered their tragic stories and families, friends, neighbors, advocates on both sides of the issue and elected officials shared their views. Defining what constitutes "artificial means" has also been the subject of heated debate. The courts have not resolved these issues in any global sense, often urging the legislature to act, and to a limited degree in New York, laws have been enacted that begin to address end-of-life decisions.
State decisions vary, with New York having one of the strictest standards. A person who is competent can refuse to accept medical treatment. A "clear and convincing" evidence standard must be satisfied in order to terminate artificial life supports for a now-incompetent patient based upon that patient's previously expressed wishes, while competent, not to be kept alive by artificial means. The right to decline treatment is a personal one and cannot be exercised by a third party when the patient is unable to do so. The Court of Appeals has refused to make a judgment as to what is for another an unacceptable quality of life. No person or court should substitute its judgment as to what would be an acceptable quality of life for another. However, if it is shown by clear and convincing evidence that the patient, if competent, would have rejected nutrition and hydration by artificial means, the clearly expressed desires of the individual to die with dignity should be honored.

In determining whether it is appropriate to exercise the State's parens patriae authority to protect those citizens unable to care for themselves, four compelling state interests must be weighed by the courts in making medical treatment decisions: (1) the preservation of life; (2) the prevention of suicide; (3) the protection of innocent third parties; and (4) the maintenance of the ethical integrity of the medical profession.

The most significant of the four interests is the preservation of life, which is particularly compelling when dealing with a child. Courts have looked to determine the patient's best interests by deciding whether the evidence establishes that the burdens of prolonged life outweigh any physical pleasure, emotional enjoyment, or intellectual satisfaction that the patient may still be able to derive from life. Medical treatment may not be withheld simply because a third party believes that the quality or prognosis is less than optimal. Indeed, much has been written of the importance of assessing the life to be lived from the individual patient's perspective; Will, My God, My Choice: The Mature Minor Doctrine and Adolescent Refusal of Life Saving or Sustaining Medical Treatment based upon Religious Beliefs, Journal of Contemporary Health Law and Policy. The fundamental right of a parent to raise his or her child and make decisions on their behalf is given great deference. For example, Public Health Law § 2504 authorizes parents to give effective informed consent on their child's behalf and parents have authority, where a minor lacks capacity to make a decision regarding resuscitation, to consent to an order not to resuscitate, pursuant to the provisions set forth in Public Health Law § 2967.

In the Matter of AB, a healthy, vibrant three and one half year old girl suffered a seizure. She was unable to respond to stimulation and could not experience joy or any other emotion, could not respond to her mother; nor could she eat, play or speak. She was in a persistent vegetative state. The court authorized the mother to consent to the removal of mechanical ventilation because there was "no State interest great enough to compel AB to remain subjected to this extraordinary life-sustaining measure. To do so would merely prolong the death of a terminally ill child, wholly lacking in cognitive brain functioning, completely unaware of her surroundings, and with no hope of ever regaining awareness, while subjecting her to daily physical intrusions including catheterizations, feeding tubes, IV's and increasing infections.

Unlike the Matter of AB case, the parents, guardian ad litem, treating physicians and the hospital are not in agreement that discontinuing the ventilator is in D's best interests. Had they been, it is unlikely that this case would have necessitated judicial intervention. Contrary to the facts of the Matter of AB, where the child was unaware and completely lacking in brain function, the treating doctor and nurse both testified that D is aware and enjoys TV and videos. D recognizes his mother. This Court appreciates that young D has lived a very difficult life, suffering from a progressive life threatening and altering disease. It is, however, D's life to live and this Court will not consider or determine whether it is a life worth living from anyone's perspective other than D's.

In this case, neither the second nor third prong, as applied to the facts of this case warrant the exercise the state's parens patriae authority. There is no intent to commit suicide, nor are minor children dependent upon D for support. D's parents are seeking to discontinue treatment. Thus, the interest in the protection of third parties has no basis herein.

Looking at the integrity of the medical profession, in the context of D's care, this Court is faced with Dr. PC and Nurse Haufler's strong objection to the cessation of treatment at this time. They will not participate in removing D from the respirator. The Court is cognizant that the hospital is preparing to discharge D to a nursing home, but even if that was not the case, neither Dr. PC nor Ms. Haufler would be directed to participate in the termination of the life-sustaining treatment. This Court is persuaded that the weight of the evidence tips in favor of continuing treatment and notes that neither PC nor Haufler was opposed to the possibility that at some future date, removal of the ventilator would be appropriate, but rather, stated that they were opposed to it at the time of the hearing, while D was aware, responsive and not in pain.

While this is not an application pursuant to SCPA § 1750-b, this Court has considered the requirements set forth therein for withdrawal of life-sustaining treatment. D lacks the capacity to consent to his medical treatment and is suffering from a disease, which is progressive in nature and will ultimately lead to his death, though there is no indication that he is currently terminal. Significantly, in the case at bar, there is conflicting, rather than concurring, medical testimony regarding whether continuing the life-sustaining treatment he presently receives would impose an extraordinary burden on D. Furthermore, the doctors testified that D may live one to two years, thus, with the ventilator there is a reasonable hope of maintaining life.

This Court credits the testimony of the treating physician, Dr. PC, that the continuation of the ventilator will not impose an extraordinary burden on D, over that of the physician on the medical ethics committee, Dr. Mondschein, who testified that he did not have experience with Hunter Syndrome and was not well versed in D's care and condition. There was no consulting physician. Therefore, the only other medical testimony offered was that of Dr. Mondschein. It is noted that while Dr. Mondschein testified that removal of the ventilator was medically acceptable, the ethics committee noted in the chart their support to wean D from the ventilator as opposed to removing it. Dr. PC testified that he attempted to wean D from the ventilator, but was unsuccessful because D's breathing became very rapid and he appeared to be in pain.

This decision is made with heartfelt appreciation for all that D and his parents have endured, what they are now going through and with compassion for what lies ahead for this family. The parents are devoted, conscientious, sincere, loving and trying to do what is best for their child. They have prepared themselves to accept the inevitable and love D enough to let him go. Based upon the evidence adduced at the hearing, however, this Court does not find that it has been proven by clear and convincing evidence that it is in D's best interest to withdraw the ventilator while he is alert, responsive, seemingly pain free and the burdens of prolonged life are not so great so as to outweigh any pleasure, emotional enjoyment or other satisfaction that D may yet be able to derive from life.

After due deliberation, the Court finds that the Patient lacks the capacity to make reasoned decisions concerning his treatment and that the request of his parents to discontinue his medical treatment is premature and not in his best interest at this time. This decision is in no way meant to bind the hands of D's parents and treating physicians prospectively, in the event that D's condition changes and there is agreement on the part of the family and health care providers as to the correct medical course of treatment. The parents' right to work with the medical community to reach a medically appropriate decision on behalf of their son is still viable, recognized and respected by this Court.

Accordingly, upon motion of Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, attorneys for the Petitioner, it is ordered and adjudged, that the application of Petitioner be and the same is hereby granted to the extent hereinafter provided; and it is further ordered and adjudged, that Nassau University Medical Center, and its physicians, nursing staff, and other designated employees and agents are authorized to provide medical treatment to DH; and it is further ordered and adjudged, that the record in this proceeding is sealed, except to the parties who have appeared herein, their attorneys, appropriate Court personnel and other Court appointees, including the guardian ad litem herein, on the grounds that this proceeding involves confidential and privileged information as defined pursuant to 22 N.Y.C.R.R. Part 216; and it is further ordered and adjudged, that the Nassau County Clerk is directed to seal the record of this proceeding.

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Petitioner Seeks Reimbursement of Social Assistance Left

July 10, 2015,

A New York Family Lawyer said that Mrs. GR, together with her disabled husband and six minor children, are clients of the Nassau County Department of Social Services. Around July 31, 1969, Mrs. GR, who had just cashed her public assistance check, was concededly robbed of the proceeds of that check, leaving her totally without funds for the month of August. Apparently, she requested emergency assistance from the Department, but this request was denied. She thereupon brought this Article 78 proceeding that the Commissioner of the Nassau County Department of Social Services (hereinafter the 'Commissioner') be directed to pay her $484, the amount of her monthly assistance check.

After service of the petition upon him, the Commissioner served a Third-party petition upon George K. Wyman, as Commissioner of the Department of Social Services of the State of New York seeking a direction that Commissioner Wyman reimburse him for any funds he was directed to pay to Mrs. GR.

A New York Divorce Lawyer said that by a short from order dated August 25, 1969, this Court directed the Commissioner to pay the sum of $484 to Mrs. GR, holding in abeyance the third-party petition. The third-party petition is now dismissed.

A Manhattan Family Lawyer said section 131 of the Social Services Law provides that it shall be the duty of public welfare officials to provide for those unable to provide for themselves within the Social Services District. Under Section 62 of the Social Services Law, the County Commissioner of Social Services has the primary responsibility for providing assistance to Social Service clients within the County. This is funded by appropriations mandated by Section 88 of the Social Services Law and should these prove insufficient, Section 92 of the Social Services Law provides for the making of a deficiency appropriation.

A New York City Family Lawyer said accordingly, the primary obligation to furnish public assistance lies upon the Nassau County Department of Social Services. The Commissioner refused to furnish that assistance precipitating this proceeding.

While, under Social Services Law, a person aggrieved by the decision of the Commissioner may seek a 'fair hearing', Mrs. GR will not be required to do so. Under her destitute circumstances, this would have been an exercise in futility. See Matter of Veit v. Barbaro, 59 Misc.2d 117, 298 N.Y.S.2d 251; Lesron Junior, Inc. v. Feinberg, 13 A.D.2d 213 N.Y.S.2d 602.

The provisions for emergency assistance are contained in 18 N.Y.C.R.R., Part 372. Section 372.1 defines emergency service as: ' * * aid * * furnished for a period not in excess of 30 days in any 12-month period * * *'.

Section 372.3 provides: 'Provision of emergency assistance to needy families with children. (a) Emergency assistance shall be available in emergency situations including, but not limited to, those caused by natural disasters, serious injury to persons or damage to property * * *.'
It would not seem to require citation that robbery of a family's entire subsistence for a month is a damage to its property.

Section 732.3(b) states that such assistance: shall be provided immediately when emergency conditions exist'.

The Commissioner refused to issue emergency assistance knowing that Mrs. GR and her family were without any other resources. Under these circumstances, the Court deems his refusal to do so arbitrary and unreasonable. His refusal seems to center upon Section 153, Subdivision 8, of the Social Services Law, which provided, effective July 1, 1969, that State reimbursement shall not be made for the duplication of any grant or allowance for any period. It appears that the Commissioner's only reason for denying Mrs. GR emergency assistance was that he believed he could obtain no State reimbursement for the emergency grant. The responsibility to provide public assistance mandated upon the Commissioner by Sections 62 and 131 of the Social Services Law has not been demonstrated to be dependent upon the Commissioner's ability to obtain reimbursement.

The Commissioner brought a third-party petition against the State Commissioner in the event he was ordered to pay. The petition must be dismissed. A claim against a state official acting in his official capacity is a claim against the state, New York State Thruway Authority v. Hurd; Psaty v. Duryea, and the State cannot be sued in the Supreme Court without its own consent, Breen v. Mortgage Commission of State of New York; Psaty v. Duryea, supra; Benz v. New York State Thruway Authority; Matter of Dormitory Authority (Span Electric), (concurring opinion). Where a state official is sued in his official capacity, the proper forum is the Court of Claims, Adler, Inc. v. Noyes. Since the State has not given its consent to be sued in this action in the Supreme Court, the petition must be dismissed.

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