Court Decides to Appoint Natural Mother as Guardian to Start Obtaining Legal Residency for Kids

April 8, 2015,

A New York Family Lawyer said in this appeal, we conclude that the subject children, facing the possibility of being separated from their only parent and returned to their native country where gang members have threatened their lives, may seek to have their natural mother appointed as their guardian as a first step toward obtaining legal residency in the United States.

The subject children, Samuel D.H., Marisol N.H., and Silvia J.H., ages 19, 18, and 16, respectively, were born in El Salvador to Miriam A.G. (hereinafter the mother) and Leonidas H. (hereinafter the father). According to the allegations made in support of the petitions, the father drank often, and he verbally and physically abused the mother. When Samuel was just four years old, the mother left the father, taking the children with her to her mother's home. The father never again had meaningful contact with the children; he did not provide them with any financial support, give them any birthday or Christmas presents, or show any interest in them.
It is further alleged that in El Salvador, in the small neighborhood where the mother and the subject children settled, now abandoned by their father, they lived under the constant threat of violence from gangs. Members of a certain gang threatened to kill Samuel, as they did with many other children, if he refused to join their ranks, and they tried to extort money from his grandmother in exchange for sparing his life. Samuel knew nine children, one a close friend, who had refused to join that gang and were later killed. One gang member told the mother he would kill her, if she did not have sexual relations with him. The perilous situation led the mother to leave El Salvador for the United States so that she could establish a safe home for the children. She found work and lived with family and friends, saving money so that she could bring the children to her. Meanwhile, though, Samuel had stopped attending school because gang members had continued to threaten to kill him if he did not join them. Fearing for Samuel's life, the mother arranged for him to travel to the United States. Marisol and Silvia stayed behind with their grandmother. Subsequently, while the children's grandmother was walking home from work, she was killed by members of that gang.

A New York Divorce Lawyer the three gang members were arrested for the murder, but the threats did not abate; other gang members threatened the lives of all the members of the mother's family. Marisol and Silvia stopped attending school, and would only leave their house if an unrelated adult male accompanied them. The mother then brought Marisol and Silvia to the United States.
Now, the children live with their mother in Nassau County, along with their teenaged uncle, Javier, who was left orphaned by the death of the children's grandmother. The mother, who is Javier's legal guardian, works 60 hours per week in order to support him and the children.
The children petitioned the Family Court for the appointment of the mother as their guardian so that they could pursue special immigrant juvenile status (hereinafter SIJS) as a means to obtaining lawful residency status in the United States, and be freed from the fear of being returned to El Salvador, where they would have no parent to support and protect them.
At a conference on the matter, the Family Court concluded that a best interests hearing was not warranted, inter alia, because the children had the "mother to protect them." There was "no reason," even if it was just "strictly for immigration purposes," to award the mother guardianship "of her own children." The Family Court issued an order dismissing the petitions without prejudice for failure to state a cause of action. We reverse.

A Westchester County Family Lawyer said that IJS is a form of immigration relief that affords undocumented children a pathway to lawful permanent residency and citizenship. The Immigration and Nationality Act, which established SIJS, employs "a unique hybrid procedure that directs the collaboration of state and federal systems". The child, or someone acting on his or her behalf, must first petition a state juvenile court to issue an order making special findings of fact that the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Further, a state juvenile court must find that reunification with one or both parents is not viable due to parental abuse, neglect, abandonment, or a similar basis, and that it is not in the child's best interests to be returned to his or her home country. Only once a state juvenile court has issued this factual predicate order may the child, or someone acting on his or her behalf, petition the United States Citizenship and Immigration Services (hereinafter USCIS) for SIJS. In addition, to be eligible for SIJS, the child must be unmarried and under 21 years of age. Ultimately, the Secretary of the Department of Homeland Security must consent to the grant of SIJS. The Secretary's consent ensures that the child is seeking SIJS for the purpose of obtaining relief from abuse and neglect, or abandonment, and not primarily for the purpose of obtaining lawful permanent residency status. Since ultimately the Secretary must give consent, the Family Court "is not rendering an immigration determination.

A Suffolk County Family Lawyer said in this instance, in order to satisfy the requirement that the subject children be legally committed to an individual appointed by a state or juvenile court, they are requesting that their natural mother be appointed as their guardian. We begin our analysis by considering the threshold issue of whether the Family Court has the statutory authority to appoint a natural parent to be the guardian of his or her children. Family Court Act § 661 provides that "the provisions of the surrogate's court procedure act shall apply to the extent they are applicable to guardianship of the person of a minor or infant and do not conflict with the specific provisions of this act" (Family Ct Act § 661[a]). Under the Surrogate's Court Procedure Act, "any person" (SCPA 1703) may petition to be named as guardian of an infant, and a guardian is "[a]ny person to whom letters of guardianship have been issued by a court of this state, pursuant to this act, the family court act or article 81 of the mental hygiene law" (SCPA 103[24])1 . Since these statutes are without limitation, they must include even the appointment of a natural parent as guardian.

Indeed, it is well established that in a contest for guardianship between a natural parent and a relative or nonrelative of the child, the natural parent may be named as the guardian or coguardian of the child. For example, in Matter of Revis v Marzan (100 AD3d 1004), in a proceeding where the maternal aunt and maternal uncle were seeking guardianship of their niece, this Court affirmed an order awarding child custody to her natural mother. In Matter of Justina S. (180 AD2d 641), over the natural father's objection, the natural mother and her new husband were awarded coguardianship of her natural child.

The only distinction between those cases and the present case is that there is no contest for guardianship of the children. No one is opposing the appointment of the mother as guardian of the children. This distinction, however, does not make a difference. Unopposed petitions for custody brought by a natural parent have been granted. There is no basis for treating an unopposed guardianship petition more restrictively than an unopposed custody petition. The distinctions between guardianship and custody are elusive, as both forms of legal responsibility to a child have very similar attributes (see Merril Sobie, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 661, 2014 Pocket Part at 97-98). Yet, at least for Samuel, since he is over 18, he cannot be subjected to a custody order (see e.g. Matter of Julian B. v Williams, 97 AD3d 670). Accordingly, we conclude that the Family Court has the statutory authority to grant a natural parent's petition for guardianship of his or her child, regardless of whether the petition is opposed.

Further, the Family Court erred in refusing to conduct a hearing to determine whether granting the guardianship petition would be in the best interests of the children. "When considering guardianship appointments, the infant's best interests are paramount" (Matter of Denys O.H. v Vilma A.G., 108 AD3d 711, 712). The Family Court's comments indicate that it found it unnecessary to hold a hearing because the children's mother was available to protect them. However, as we explained in Matter of Marcelina M.G. v Israel S. (112 AD3d at 111), the fact that a child has one fit parent available to care for him or her "does not, by itself, preclude the issuance of special findings under the SIJS statute." Rather, a child may be eligible for SJIS findings "where reunification with just one parent is not viable as a result of abuse, neglect, abandonment, or a similar state law basis" (id. at 110). Moreover, in determining whether it is in the best interests of a child to grant a guardianship petition, it is entirely consistent with the legislative aim of the SIJS statute to consider the plight the child would face if returned to his or her native country and placed in the care of a parent who had previously abused, neglected, or abandoned him or her.

In the case before us, there are sufficient allegations in the guardianship petitions and supporting papers to suggest that naming the mother as guardian of the subject children would be in their best interests (see Matter of Deven Meza F. [Maria F.-Oneyda M.], 108 AD3d 701; see also Matter of Baby K., 188 Misc 2d 228 [grandparents were awarded temporary guardianship of their daughter's unborn baby, with both parents' consent, so that the child would be covered under the grandfather's health insurance policy]). The father has abandoned the children (see Matter of Marcelina M.-G. v Israel S., 112 AD3d at 110, 114). If the children are returned to their native country, they may be separated from their only other parent, who first left El Salvador because she was threatened with sexual assault and wanted to earn enough money to bring the children to the United States. The children will not have the protection of their grandmother who became their temporary, de facto guardian in El Salvador once the mother immigrated to the United States, as members of a gang murdered her. Alone, without either parent or their maternal grandmother, the children would face the prospect of having to protect themselves from violent gang members, which, cruelly, may be possible only by joining them. Naming the mother as guardian of the children may potentially enable the children to pursue legal status in the United States. If legal status is granted, the children may avoid being separated from their mother and instead keep their family intact and safe, away from the perils present in El Salvador. In sum, assuming the truth of the allegations, we disagree with the Family Court's conclusion that there is "no reason" to appoint the mother as guardian of the children.

Therefore, the order is reversed, on the law, the guardianship petitions are reinstated, and the matters are remitted to the Family Court, Nassau County, for a hearing and a new determination of the guardianship petitions thereafter.

Accordingly, the order is reversed, on the law, without costs or disbursements, the guardianship petitions are reinstated, and the matters are remitted to the Family Court, Nassau County, for a hearing and new determination of the guardianship petitions thereafter.

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Plaintiff Asks Court for Leave to Serve Defendant via Publication

April 7, 2015,

A New York Family Lawyer said in February 1971, plaintiff made application to this Court for leave to serve the defendant by publication and for permission to proceed as a poor person. Though service was made on the County of Nassau, they neither appeared nor opposed the application. By decision dated February 17, 1972, this Court granted the application to serve the defendant by publication, but denied the application to proceed as a poor person. The Court held therein that the moving papers were deficient.

'Plaintiff sets forth in her affidavit that she has been employed by the Westbury Board of Education as a secretary at an annual salary of $5460.00 since October 1971 and in addition thereto received supplemental public assistance to augment her income to spend upon such work related expenses, such as baby-sitting, car fares, lunches, etc., but nowhere in the moving papers does she set forth the amount of supplemental income.'

A New York Divorce Lawyer said that in the application now before the Court service was made upon both the County of Nassau and State of New York, neither has appeared or opposed the application. The plaintiff in her affidavit has now furnished the Court with the required data as to amount and sources of her income and her property and its value. The affidavit declares that the plaintiff resides with her four infant children in a one family house in Westbury, which she owns as tenant by her entirety with her absent husband, valued at $25,000.00, and is encumbered by a first mortgage with a present balance of approximately $15,000.00. The mortgage payments are $219.00 per month. Plaintiff is presently employed as a secretary and earns the sum of $105 ($99 net) weekly. In addition, she receives supplementary public assistance from the Nassau County Department of Social Services in the amount of $264.00 per month. In her affidavit she sets forth that she has no bank account, owns no stocks, bonds, life insurance policies, or real estate (other than marital residence). She further states that she 'owns no personal property other than the furniture or clothing necessary for barest survival', and has no other resources or sources of income. The plaintiff further sets forth that she does not receive the $100.00 per week spousal support set by the Family Court, as her husband has absented himself from his home and family continuously since April, 1969.

A New York City Family Lawyer said that the Court herein Does not hold that all persons who are in the same financial status as the plaintiff, Gloria M. Lancer, are as a matter of law 'poor persons', pursuant to CPLR § 1101. Also, the fact that a person has been approved by the Social Services Department to receive supplemental public assistance and/or that she is qualified to be represented by the Nassau County Law Services does not conclusively mean that the individual meets the standards and requirements of CPLR § 1101 for purposes of proceeding as a poor person. For, as this Court stated in the decision of February 17, 1972, Supra: 'the standards required by CPLR 1101 subd. (a) and the contents of the affidavit are derived from section 199 of the Civil Practice Act and rules 35 and 37 of the Rules of Civil Practice to the extent of eliminating an arbitrary limitation that the individual is not worth $300 in cash or available property besides the wearing apparel and furniture necessary for one's self and family and replacing same with the requirement that the affidavit set forth 'the amount and sources of his income' and list 'his property with its value'. The purpose of this modification by the Legislature was to place the actual facts of the moving party's financial position before the court and to enable the court to ascertain more easily whether permission to proceed as a poor person should be granted.

A New York Family Lawyer said that granting permission to a moving party to prosecute an action as a poor person rests in the sound discretion of the court in which the motion for such relief is made.

For though where the interests of justice so requires the relief to prosecute an action as a poor person should be granted, however, the court is not required to give pro forma approval to any relief which requires the expedition of public funds and adequate facts must be shown in the moving papers as required by § 1101 of the Civil Practice Law and Rules prior to granting said relief. The fact that the plaintiff receives supplemental public assistance and that the Nassau County Law Services Committee, Inc. has consented to represent her without fee indicates only that she meets the criteria required by them, however, it does not necessarily follow that plaintiff would be entitled to prosecute this action as a poor person pursuant to § 1101 of the Civil Practice Law and Rules.

It may very well be that upon a proper showing the plaintiff may be able to set forth sufficient facts to entitle her to the relief requested, but on the basis of the moving papers before the court she has failed to do so.

Though the Court has a responsibility to be certain that adequate inquiry is made in matters relating to the expenditure of public funds, it also has an equal responsibility to be certain that the accessability to the courts is not prevented by a person's lack of funds. Therefore, regardless of practical or policy problems, it is essential that all the parties assist the court in arriving at a proper determination by the submission of adequate moving papers, otherwise, it may become necessary to set these matters down for a hearing for purposes of taking testimony. Needless to say this procedure should, if possible, be avoided as it adds one more burdensome task to the case load of the court and places the court in the undesirable position of assuming to some extent the role of advocate as well as judge. Nor should a person have to be shorn of all human dignity in seeking and obtaining such relief when justified.

The Court notes that, though service was made in this instance on both the County and the State, neither has appeared to either support or oppose the application. The Court further notes that, though it has a concern in these matters, the governmental bodies involved have not only a concern but a direct responsibility as to the expenditure of public funds. However, it does not follow that it is incumbent upon them to oppose these applications, for to the contrary where after adequate administrative review the application is found to be justified it should then be fully supported and, where deemed to be an improper claim for the payment of public funds, then it should with equal vigor be opposed. Also, by so doing it might help to ease some of the procedural problems in connection with processing these claims. In either event an appearance should be made by all parties, and moving papers submitted containing factual data to assist the Court in making a proper and expeditious determination in these matters.

In the instant application the plaintiff's assertion that she has no funds, nor owns any personal property other than the furniture and clothing necessary for barest survival, and has no other sources of income other than stated therein remains uncontroverted. Though this fact alone does not mandate a determination that plaintitt meets the requirements of CPLR § 1101, it nevertheless, in the absence of any contradictory facts, is a compelling reason for the court to so hold.

For the Court in making a determination under CPLR § 1101 should construe the term 'poor person' as a relative concept, not in its strict dictionary definition, and determine its application on its own particular facts and merits. For a person may, under certain circumstances, as herein, be a property owner and wage earner and yet qualify to sue as a poor person. For it is not the purpose of CPLR § 1101 that a person should be devoid of all property in order to qualify thereunder as a 'poor person'. Each application must be determined on its individual merits and the test to be applied is whether, upon then particular facts presented, the Court determines that the individual neither possesses nor has available to him sefficient funds to maintain the court action, and that, if relief is not granted pursuant to CPLR § 1101, he will in effect be precluded from access to the courts.

Thus, applying this test and on the basis of the moving papers of the plaintiff, the Court herein grants the application of the plaintiff, Gloria M. Lancer, to proceed as a poor person in the said matrimonial action and the State of New York is directed to pay the cost of publication by substituted service. The Court determines that the County of Nassau is not responsible for the cost of publication herein, as that is the sole responsibility of the State in that Section 1 of Article XVII of the State Constitution provides that this is a state charge as the same has not been delegated to the County, wherein the Appellate Division, Second Department, reversed the lower court's holding that the City was responsible for the cost of publication and instead placed the responsibility upon the State.

The second aspect of plaintiff's motion is that the Court in the exercise of its discretion, pursuant to CPLR § 308(5) directs that service be made upon the defendant by mail, in lieu of service by publication.

The application is denied. This is a matrimonial action and Domestic Relations Law § 232 specifically prohibits entrance of a default judgment unless service as contained therein is adhered to. Further, CPLR § 308(4) specifically prohibits in matrimonial actions service by mail acceptable in other lawsuits.

The Court is aware of the recent discretionary methods of service adopted in the decision favoring service by mailing pursuant to authority of CPLR § 308(5). However, the Court feels that CPLR § 308(4) prohibits the same in matrimonial actions and, if the legislature was desirous of affording plaintiff in this manner of service in matrimonial actions, it would have specifically included this method in Domestic Relations Law § 232.

In Jeffreys v. Jeffreys, 58 Misc.2d 1045 1051, 296 N.Y.S.2d 74, 82, Supra, the court stated: An action for divorce is fundamentally different from actions in contract or concerning real property. The latter may be brought or not brought; they may be settled out of court. But our State Constitution (Art. I § 9) mandates that divorces may be granted only by 'due judicial proceedings.' Furthermore state statutes dictate who may marry; by whom the marriage may be performed; the obligations of the parties during marriage; the grounds for separation or divorce and the obligations of the parties after the termination of the marriage. For all purposes the State is very much a 'partner' to a marriage and a 'party' in a matrimonial action.'

The court said further: Marriage is clearly marked with the public interest. In this State, a marriage cannot be dissolved except by due judicial proceedings.

Thus, the change in the mode of service, if any, should be made by the legislature and not the Court.

The Court notes the dicta of the Supreme Court in Boddie v. Connecticut, 401 U.S. 371, 382, 91 S.Ct. 780, 788, 28 L.Ed.2d 113 (1971), in which they stated: 'We think in this case service at defendant's last known address by mail and posted notice is equally effective as publication in a newspaper.'

However, as noted, unless the legislature determines otherwise this Court lacks the necessary discretionary authority. Furthermore, on the facts presented the Court herein determines that the continued existence of the defendant is unknown and that he has made it impossible for the plaintiff, acting with due diligenge, to serve him within or without the state.

Therefore, the Court, on its own motion, amends the prior determination of February 17, 1972 to include, in addition to service by publication prescribed by CPLR Rule 316, mailing copies of the summons to defendant's last known address, 640 South Main Street, Los Angeles, California, and also mailing copies of the summons to his brother, Dave Lancer at 6907 Blue Bell Avenue, North Hollywood, California.
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Court Listens to Case Dealing with Judicial Economy

April 6, 2015,

A New York Family Lawyer said this personal injury action, stemming from a multi-vehicle collision, raises interesting issues regarding consolidation, venue, comity, judicial economy, the avoidance of forum shopping, and a seeming conflict between the "first-in-time rule" and the convenience of material witnesses where actions have been filed in two or more counties concerning the same set of facts. The novel aspect of this motion to consolidate and to transfer venue is that prior to the institution of the aforecaptioned action in this Court, the second lawsuit in this litigation, a Justice of Supreme Court, Kings County, transferred the first action to Suffolk County.

The plaintiff DD, a resident of Bergen County, New Jersey, was allegedly injured on November 16, 2008, at 4:45 A.M., while driving in Kings County, New York, on the Brooklyn-Queens Expressway near the Williamsburg Bridge. According to a police accident report, taken by the New York City Police Department, the accident involved four vehicles, and two persons were allegedly injured.

A New York Divorce Lawyer said that DD is now the plaintiff in two state court actions stemming from the same vehicular accident. On September 30, 2009, the plaintiff filed DD v SK and MR, in Supreme Court, Kings County, bearing Index Number 24694/2009. Plaintiff's counsel failed to specify in its summons the basis for its choice of venue. Under CPLR 503(a), venue had to be in a county in New York State where one of the parties resided. MADC, Esq., of the Law Offices of NLI, Esq., moved, in the Supreme Court, Kings County action, to have the action transferred to Suffolk County, where its client, MR lived. By not having chosen an appropriate forum, plaintiff's counsel forfeited the choice of venue.

A Bronx Family Lawyer said that in the Kings County action, although the co-defendant SK was a resident of Queens County, neither SK's counsel nor plaintiff's lawyers made a cross motion seeking to change the venue of that action to Queens County, based on the residence of co-defendant SK. The undersigned has asked counsel to provide the motion papers presented to the Kings County court on the motion to change venue. Plaintiff's counsel, in its opposition papers to MR's motion in the Kings County action, did point out that SK was a Queens County resident, the witnesses would be disadvantaged by traveling to Suffolk County, and that the action should be kept in a county closest to the place of the accident. No record was taken of the oral argument on the motion, and, by order dated on or about June 25, 2010, Justice Larry D. Martin, a Justice of Supreme Court, Kings County, directed that the Kings County action be transferred to Suffolk County. Justice Martin's order briefly mentioned that the decision was based on oral argument, without further elaboration.

A Manhattan Family Lawyer said that once the Kings County action was transferred to Suffolk County, the Clerk of Suffolk County, on July 16, 2010, assigned it a new Index Number of 26339/2010. Then, after the transfer of the action from Supreme Court, Kings County to Supreme Court, Suffolk County, of DD v SK and MR, the plaintiff, on September 22, 2010, filed the second action in this litigation, DD v Kevin T. KKC in Supreme Court, Queens County. Interestingly, plaintiff, upon filing the second action in Queens County, named only defendant KKC as a defendant, and did not name the two defendants who were named in the first action that had been transferred from Kings County to Suffolk County.

Neither the Suffolk County action nor the Queens County lawsuit has seen much activity, little discovery has occurred, and no party has moved for a stay of the Suffolk County action.

The plaintiff DD, by his counsel, S & A, L.L.C., upon the foregoing papers, has moved, before the undersigned, in the Queens County action, to consolidate both the Suffolk County and Queens County actions and to have the venue of the consolidated actions in Queens County. The plaintiff and his counsel argue that the totality of the special circumstances, the convenience of most of the material witnesses and the interests of justice require that, upon consolidation, Queens County - - and not Suffolk County - - is the appropriate forum for the litigation
Defendant MR, in his cross motion, also seeks consolidation, but urges that, based upon the temporal proximity, or the "first-in-time rule," that the venue of the combined actions be situated in Suffolk County. MR naturally prefers Suffolk County since he is the only litigant and witness situated in Suffolk County.
The plaintiff, DD, as stated, resides in New Jersey. Defendant MR in the Suffolk County action, as stated, resides in Centereach, Suffolk County. Defendant SK in the Suffolk County action resides in Queens County. KKC, the defendant in the Queens County action, the second lawsuit, resides in Queens County.
All parties agree that, in this multi-vehicle accident case, consolidation should be granted. Both reason and controlling law dictate this inescapable conclusion.
The plaintiff has argued in both the prior motion to Justice Martin and to the undersigned that plaintiff's health care professionals who may have to testify would be greatly inconvenienced by having to litigate in Suffolk County. In plaintiff's reply papers, DCB, Esq., focuses on two of his physicians and attaches affirmations of Dr. SH in Saddle Brook, New Jersey, and Dr. MA, a Board-certified neurosurgeon, with offices in New York County.
First, these affirmations should have been submitted on plaintiff's original motion to consolidate and to transfer venue, and not for the first time in reply, a tactic that is not condoned by the case law and is unfair to adversary counsel. Second, and even more important, the submitted affirmations of the two physicians were not signed. Since the physician affirmations were unsigned, they are nullity, without any relevance or meaning. Since they are unsigned, the Court is not free to consider them or the arguments contained in them.
The fact that plaintiff's counsel did not tender signed affirmations of the plaintiff's two principal treating physicians in the motion made by the plaintiff to the undersigned to consolidate and to make the venue of the consolidated actions in Queens County is unfortunate. Had the signed affirmations been submitted, this Court would have considered them in deciding whether or not to place the venue of the consolidated actions in Queens County. Indeed, the convenience of the treating physicians is regarded in several decisions as an important factor in weighing the venue of the action.
Plaintiff's act of submitting unsigned affirmations only in reply on this motion to consolidate is only one of several errors by its counsel. It brought the action first in Kings County, ignoring the venue provisions of the CPLR, where Kings County was not a legal basis for venue. When defendant MR moved in the Kings County action to transfer the lawsuit to Suffolk County, plaintiff's counsel ought to have made a formal cross motion to that effect and to have perfected an appeal from an adverse order, if plaintiff truly was aggrieved.
Plaintiff then brought the second action, naming only defendant KKC, a Queens County resident, in Queens County. That second action, together with this motion, might well be perceived as an effort to undermine Justice Martin's order and the authority of the Supreme Court, Suffolk County. Plaintiff could have made the same motion to consolidate and to change venue in the Suffolk County action, thereby both honoring Justice Martin's decision and empowering the Supreme Court, Suffolk County, to consider globally the interests and inconveniences of most of the parties and their witnesses.
Even on this motion, and extending to post-submission, the undersigned's Chambers was constrained to call plaintiff's counsel, on several occasions, to provide relevant documents that should have been given to the Court in the main motion papers. The final straw, as pointed out by Mr. Canzoneri, in his August 19, 2011 electronic, email submission to the Court, are the unsigned affirmations of plaintiff's principal treating physicians submitted by plaintiff in reply on his motion.
A letter from plaintiff's counsel, invited by the undersigned as part of post-submission briefing, argues the unfairness of having to litigate in Riverhead. Inherent in the argument is the accusation that defense counsel NLI, Esq., whose law offices in Long Island City are only a few minutes away from the undersigned's Chambers, is profiting by her client's Suffolk County address to make life rough for both the plaintiff and his counsel, in a war of attrition. Whatever the motives of MR's counsel, it was completely within defense counsel's rights to take advantage of plaintiff's missteps in filing the litigation and forfeiting the venue provisions by the incorrect choice of venue.
Plaintiff's counsel's hands are not pure here. Plaintiff chose an improper venue action initially and then when plaintiff lost the motion to transfer in Supreme Court, Kings County, plaintiff filed the second action in this Court, in Queens County, although it had from the very beginning, known of the identity of KKC as one of the drivers in the multi-car collision, since he was named in the original police accident report. In this regard, even post-submission, this Court, instructed plaintiff's counsel to submit the entire police accident report, since only parts of it were included in the original motion, and the pages involving KKC were missing. The bottom line is that KKC's identity was known to plaintiff's counsel from the start. It appears that Plaintiff's counsel pounced on KKC's residence in Queens County as a means of subverting Justice Martin's order and getting a second bite at the apple to get the case away from Supreme Court, Suffolk County.
The plaintiff, in its motion, filed on May 27, 2011, asks that the consolidation be granted and that the venue be ordered in Queens County. Two defendants, Kahn and KKC, are from Queens County. The police officer who responded to the scene and who prepared the police accident report is from the New York City Police Department from the 90th Police Precinct located in Kings County.
The plaintiff is from New Jersey and would have to travel to Riverhead, where the Supreme Court, Suffolk County, is situated, in order to attend conferences and argue motions. Plaintiff's medical providers, in addition, are from New Jersey and New York County.
In the well-prepared and well-argued cross motion by MR's counsel, the law office of NLI, attorney MADC, Esq., cites several cases that courts will consolidate lawsuits in the county where the first action was filed. MR's counsel is correct only as a general proposition. The case law, including the older precedents cited by Mr. Canzoneri, make clear that the general rule requires deference to and consolidation in the county in which the first action was filed, under the "first-in-time rule."
The aforementioned "first-in-time rule," however, is malleable, yielding and bending in an appropriate case possessing "special circumstances.”
Where special circumstances exist, based on a thorough balancing of all the circumstances and the provident exercise of discretion, exceptions to the general "first-in-time rule" may be made. An argument could be made that the plaintiff DD and his counsel, S & A, L.L.C., should have filed the second action in Suffolk County, especially when Justice Martin transferred the Kings County action to Suffolk County. One could argue, as stated above, that plaintiff DD was resorting to impermissible forum shopping.
One of the cornerstones of "special circumstances" that permit a deviation from the general "first-in-time rule" is the convenience of the material witnesses.
In Ackerman v Cummiskey, 236 App Div 519 [4th Dept. 1932], upon which plaintiff places his principal reliance, the Appellate Division, reversing the court below, transferred the case from Monroe County, where the first action was filed, to Cattaraugus County since "it appears that the majority of the material witnesses reside in Cattaraugus county." The convenience of witnesses is an important factor in determining venue motions. This Court has also acknowledged the case law that the convenience of a plaintiff's treating physicians is an important factor in the venue decision.
Contrary to the cases relied upon by plaintiff, this Court's independent legal research has found the precedent of Mei Ying Wu v Waldbaum, Inc., 284 AD2d 434 [2nd Dept. 2001]. In that case, the Appellate Division, Second Judicial Department, held that the lower court's granting of the motion to change venue was an improvident exercise of discretion. Strikingly similar to the facts of the present case, in Mei Ying Wu, the plaintiff brought the action in Supreme Court, Kings County, under a mistaken belief. The defendant in that case, as defendant MR has done in this case, then successfully moved to have the Kings County action sent to Suffolk County based on a correct assertion of permissible venue choices and principles. The Supreme Court, Suffolk County then, on plaintiff's motion, transferred the action to Queens County since the plaintiff, her family members, and treating physician were all from Queens. The Appellate Division reversed.
The Second Department stated, in language equally applicable to the facts of the instant case: The plaintiff's motion was based on the convenience of three witnesses: herself, her daughter, and her treating physician. However, the convenience of the parties and their experts "is not relevant to a determination of a change of venue under CPLR 510(3)". Nor should the court consider the convenience of the plaintiff's family members. Finally, we note that the plaintiff's motion was made some 17 months after she commenced the action, and only after the defendant successfully moved to change the venue from Kings County to Suffolk County.
Although the language is striking in similarity to the facts of the present action, that case, Mei Ying Wu v Waldbaum, Inc., 284 AD2d 434, did not involve a consolidation of two actions. Although the determination of whether actions should be consolidated is a clear one, the decision on whether to transfer the venue of an action hinges crucially on whether the lower court providently or improvidently exercised its discretion.
Plaintiff's counsel, by its several missteps, done either negligently or deliberately, is sloppy or manipulative, but this Court is reluctant to lend its imprint to an application with overtones of forum shopping. Already, one Supreme Court Justice has sent the Kings County action to Suffolk County. A good argument could be made that the court to which the motion to consolidate should be made is the Supreme Court, Suffolk County, since the earlier Kings County action has been transferred to Suffolk County, and even the transfer to Suffolk County occurred before the plaintiff filed the second action in Supreme Court, Queens County. The Suffolk County action is the one filed first in time and ordinarily should be given deference. Under the aforementioned facts, it might be argued that plaintiff was and is indulging in forum shopping.
Ironically, MR's own attorney, the Law Office of NLI, who has cross-moved for consolidation in Suffolk County, has her office in Long Island City, only a few blocks away from the Long Island City courthouse where the undersigned presides. Indeed, making defendant MR travel, when needed to Long Island City poses little inconvenience since the Long Island City courthouse is accessible by the Long Island Railroad. Plaintiff argues that little interest and benefit would be served in having a consolidated case tried in Suffolk County, especially with its courthouse being in Riverhead, taxing every witness, law firm, and party except for defendant MR.
Plaintiff's counsel, however, has charted the course of this litigation by its decisions, whether negligently or deliberately made. Plaintiff brought the first action in Kings County, on September 30, 2009, although no party resided in Kings, and the CPLR does not permit venue to be situated in a county simply because a motor vehicle accident occurred in that county. Plaintiff then failed to make a formal cross motion in the Supreme Court, Kings County action to have the venue of that action transferred to Queens County, based on the fact that defendant SK resides in Queens. Plaintiff then waited till the first action was formally removed from Kings County to Suffolk County before bringing the second action in this Court. Even that second action in Queens County, commenced on Sept. 22, 2010, might be viewed as a strategy to get another court to weigh in on the venue choice.
The present motion to consolidate and transfer venue was first filed by plaintiff on May 27, 2011, 20 months after plaintiff filed its first action in Kings County and 10 months after the Clerk of Supreme Court, Suffolk County recorded, on July 16, 2010, the transfer of the original lawsuit from Kings County to Suffolk County.
The branch of the plaintiff's motion to consolidate, for all purposes, is granted. The branch of the plaintiff's motion seeking to have the venue of the consolidated actions in Queens County is denied.
Defendant MR's cross motion is granted in all respects, and the venue of the consolidated action shall be in Suffolk County. This Court, therefore, orders that the action of DD v KKC in Supreme Court, Queens County, under Index Number 23984/2010, be transferred by the Clerk of Supreme Court, Queens County to the Clerk of Supreme Court, Suffolk County, and be consolidated for all purposes with DD v SK and MR, under Suffolk County Index Number 26339/2010.
The Clerk of the Supreme Court, Queens County, accordingly, shall cause the file and all certified papers and minute book entries in DD v KKC to be transferred to the Clerk of Supreme Court, Suffolk County. The consolidated actions shall proceed under Suffolk County Index Number 26339/2010. The consolidation is for all purposes.
Any party to the consolidated actions may serve a certified copy of this order upon the Clerk of the Supreme Court, Suffolk County, and the Clerk of Supreme Court, Queens County. Any party to the consolidated actions may serve notice of entry attaching a copy of this order bearing the dated stamp of the Queens County Clerk.
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Court Discusses Family Succession Rights

April 5, 2015,

A New York Family Lawyer said the petitioner commenced this proceeding pursuant to Article 78 of the CPLR to review a determination of the respondent, City of New York, Department of Housing Preservation and Development (hereafter referred to as "HPD"), which purported to deny Petitioner's appeal for family succession rights pursuant to 28 RCNY§3-02(p) concerning a Mitchell-Lama apartment Petitioner occupies with his wife and nine children. The apartment Is owned and operated by the respondent, Kent Village Housing Company, Inc. (hereafter referred to as "Kent Village") and is known as Apartment 4D at 116 Clymer Street, Brooklyn, New York (hereafter referred to as the "Apartment"). In his petition Petitioner alleges that he never applied for family succession rights to the Apartment Instead,

Petitioner contends that he Is a co-tenant who has been named on the lease for the Apartment since In or around 1997. Petitioner further alleges that he resides In the Apartment based upon his own rights as a co-tenant and that there Is no statutory basis for HPD to Institute, prosecute or determine any proceedings In Petitioner's name for family succession rights to the Apartment Therefore, Petitioner argues that HPD's determination denying him family succession rights and authorizing his eviction from the Apartment Is arbitrary and capricious, an abuse of discretion, affected by errors of law and in violation of lawful procedure. Accordingly, Petitioner seeks a Judgment annulling and vacating HPD's determination and declaring Petitioner's rights vis-a-vis HPD and Kent Village with respect to the Apartment

A New York Divorce Lawyer said in his affirmation In support of Petitioner's petition, Petitioner's counsel points out that 28 RCNY §3-18 establishes the procedure to terminate a tenant's lease rights. Petitioner's counsel further argues that lease termination procedures differ from family rights succession procedures because, In a lease termination proceeding, there must be a showing of the tenant's fault and HPD has the burden of proof while, in a family succession rights proceeding, the tenant has the burden of proof and fault Is not an issue.

A Long Island Family Lawyer said the HPD has answered the petition alleging that Petitioner has no valid claim for family succession rights or any other valid lease rights to the Apartment HPD further alleges, without elaboration, that "28 RCNY §3-02 governs petitioner's application for succession rights and §3-18 Is not applicable." (HPD's Answer, Paragraph 150). Additionally, HPD argues that the instant CPLR Article 78 proceeding is untimely because HPD mailed a copy of Its decision In the family succession rights proceeding to Petitioner on October 15,2004 and he did not commence the Instant proceeding until May 10,2005.

A Brooklyn Family Lawyer said that on the return date of the petition, Kent Village appeared and orally argued against the petition but has failed to submit an answer to the petition and must, therefore, be deemed in default.

In reply to HPD's answer, Petitioner's attorney argues HPD has failed to address the Issue of whether a family succession rights proceeding was appropriate under the circumstances of the instant case, Petitioner's attorney contends that a proceeding asserting family succession rights occurs before a lease Is Issued In the name of a prospective tenant and that there Is no legal authority for HPD to affirmatively Institute and prosecute such proceedings In order to conduct an after-the fact review of the propriety of the Issuance of an outstanding lease. Instead, he argues that, according to the Rules of the City of New York, the proper procedure to challenge a tenant's rights pursuant to an outstanding lease Is a lease termination proceeding pursuant to 28 RCNY §3-18. Finally, Petitioner's attorney argues that the Instant Article 78 proceeding Is timely because It was filed within four months from the date that Petitioner alleges he first received notice of HPD's final administrative determination against him and, In spite of HDP's allegation that It mailed a copy of the determination to Petitioner substantially earlier, there has been no evidence to contradict Petitioner's allegation as to when and how he received notice of the determination.

There is no dispute between the parties as to the underlying facts Involved In the Instant matter.
At about the time they were married, Petitioner and his wife were issued a lease for and moved Into a one-bedroom apartment In the publicly subsidized housing complex managed by Kent Village. HPD has not challenged the propriety of the Issuance of that lease. As the Petitioner began having children, they applied for and were added to the Internal waiting list for a two-bedroom apartment in the complex. In or around 1996, the Petitioner were approved for an internal transfer to a two-bedroom apartment in the complex. At the same time, another family In the complex applied for an Internal transfer from a three-bedroom apartment to a two-bedroom apartment Petitioner alleges that at the direction and with the knowledge and consent of Kent Village, his family and the other family switched apartments. Although there is no evidence to Indicate who orchestrated the apartment swap, Kent Village began Issuing leases to the Apartment In the name of Petitioner as Co-tenant with the head of the family that had previously lived In the Apartment Petitioner was aware that this was transpiring because Petitioner signed, Inter alia, leases which also Included the signature of the head of the other family and listed both family heads as Co-Tenants, Since Kent Village prepared the leases and other paperwork, Kent Village was also aware that this was transpiring.

In or around 1998, HPD conducted an application audit and a re-certification audit of Kent Village's property management records. In an application audit, HPD reviews the paperwork that relates to applications for occupancy, transfer or successor tenancy. In a re-certification audit, HPD reviews the paperwork that relates to current occupants' annual re-certifications of family composition and financial resources In' connection with the occupant's continued eligibility for housing subsidies. During the course of its audits, HPD discovered numerous discrepancies In Kent Village's records. Among the discrepancies was the fact that the records for the Apartment (Including the 1997 and 1998 lease renewals, family income certifications and family composition certifications as shown in Exhibits P and Q to HPD's answer herein) Indicated a change in the head of the household (from the name of the head of the family previously occupying the Apartment to that Individual and Petitioner) yet no application for the change had been submitted to HPD (as required by regulations). Furthermore, the record before the court indicates that there were no documents In Kent Village's file to Justify the change as a transfer based upon any waiting list or as a family member's succession to the lease rights of a prior lessee of the Apartment.

By letter dated June 23,1998, HPD advised Kent Village that the results of HPD's audit of Kent Village's records Indicated; "...that the housing company has permitted inappropriate succession practices for a number of years." and requested that Kent Village submit certain specific documents to HPD concerning certain apartments Identified In HPD's audits including the Apartment involved in this matter.

In response to HPD's request and apparently without any application or request by Petitioner, Kent Village's managing agent sent Petitioner a form letter dated June 29,1998 advising Petitioner that he was; â "...currently occupying an apartment In violation of the Rules And Regulations Governing City-Aided Limited Profit Housing Companies." and that Petitioner's file contained Insufficient Information for Kent Village; " approve your tenancy and forward its approval to the Department of Housing Preservation and Development for their approval In compliance with Section 3-02(p)(8) of the rules and regulations." Although the form letter advises Petitioner that he may appeal the "determination" to HPD within thirty calendar days of Its receipt, the letter contains no Information that would provide any notice of the substance of the alleged violation of the applicable rules and regulations nor any explanation of what rule Furchter had purportedly violated or any opportunity or time period to cure the alleged violation.
By letter dated July 2,1998, Kent Village's managing agent notified HPD that; "[a]t that present time, all known apartments that may be In violation of the succession rules have been notified by the housing company as per my letter to you dated 6/29/98." HPD was listed as receiving a copy of Kent Village's June 29, 1998 letter to Petitioner. However, the record contains no letter dated June 29,1998 addressed directly to HPD.

By letter dated July 31,1998, Kent Village notified Petitioner that his; "...application for permission to remain In occupancy as a tenant of the above apartment is hereby denied." This letter specifically refers to the occupancy of the Apartment by the prior family of record and makes specific factual statements that would be relevant to an application by an apartment's occupant for family succession rights and then directly states: "You were notified of the rejection of succession by letter mailed June 30,1998..." The July 31,1998 letter further states:" You may within thirty (30) calendar days of the receipt of this denial, appeal to the Assistant Commissioner of HPD — The appeal shall briefly set forth the reasons why you believe you are entitled to occupy the apartment and any errors or erroneous findings you believe are contained In this determination. The Assistant Commissioner or her designee will review this â determination and any additional Information submitted by you and will Issue the final agency decision with regard to your application."

By letter dated August 17,1998 containing the reference "Kent Village Housing Co v. Petitioner", HPD directly advised Petitioner, "the above housing corporation has denied your request for succession rights to apartment #4D.”

By letter dated January 28, 1999, Petitioner's counsel submitted additional Information to HPD including, Inter alia, the fact that; "Mr. Petitioner never made... a request for succession rights/' and the legal argument; "...that there is no succession rights case properly before you."
Nothing further seems to have transpired In the Instant matter until November 8,2001 when, In spite of the fact that the regulations relating to family succession rights do not provide for a hearing before an administrative law Judge, HPD conducted Just such a hearing captioned; "Kent Village Housing Associates, Vs. Moshe Petitioner." Petitioner was present and testified at such hearing. As a result of that hearing, HPD's hearing officer Issued a decision dated October 14,2002 titled' "DENIAL OF APPEAL FOR SUCCESSION RIGHTS". In that decision, HPD's hearing officer concluded; "... the succession rights appeal Is denied..."

HPD has offered an affidavit of Its hearing officer and another employee who allege that they mailed the above decision to Petitioner on October 15,2004 together with 26 other decisions they mailed out on that date. However, Petitioner alleges that he did not receive the decision or any notice thereof until he received a notice of the termination of his tenancy dated February 18,2005 which had a copy of the decision attached to It. Thus, HPD has offered no evidence contradicting Petitioner's statement concerning the date of his receipt of the decision.

First, addressing the issue of the statute of limitations, it Is well settled (and HPD Itself concedes) that its determination did not become binding upon Petitioner until it had an impact upon him and the; "...petitioner was negatively Impacted when he received respondent's decision,...". Thus, the Issue becomes the timing of Petitioner's receipt of the determination not the date of Its mailing.

HPD argues that proof of a routine office practice with respect to mailing a document Is sufficient to establish a refutable presumption of the document's receipt However, none of the cases cited by HPD establish any presumption as to the timing of the receipt of the document
Moreover, except for the cases relating to the service provisions of the CPLR (in which the operative issue Is the fact of mailing not the fact of receipt) all of the cases relied upon by HPD either directly or, Indirectly cite Nassau Insurance Co. v Murray, 46 NY2d 828 (1978) as support for the argument advanced by HPD. Omitting citations, the entire published decision In the Nassau case reads as follows:

Where, as here, the proof exhibits an office practice and procedure followed by the insurers in the regular course of their business, which shows that the notices of cancellation have been duly addressed and mailed, a presumption arises that those notices have been received by the insureds. Denial of receipt by the Insureds, standing alone, Is insufficient to rebut the presumption. In addition to a claim of no receipt, there must be a showing that routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed. We would hasten to add, however, that In order for the presumption to arise, office practice must be geared so as to ensure the likelihood that a notice of cancellation Is always properly addressed and malled.

The proof submitted to this court by HPD In the instant matter Is not sufficient to establish the presumption set forth In Nassau. The affidavits of Ms Lippa and Ms. Falcon do not demonstrate an office practice established and followed by HPD In the regular course of Its business. Instead, they discuss what two Individuals did on one specific day in response to a perceived need to mall out 27 decisions on that day, The affidavits offer no basis for the court to conclude that the conduct of those two Individuals conformed to any established procedure whatsoever.
Based upon the foregoing, the only evidence presented to the court to establish when Petitioner received the determination Is Furchter's acknowledgment that he received It on February 18,2005. "The burden rests on the party seeking to assert the statute of limitations as a defense to establish that its decision provided notice more than four months before the proceeding was commenced. Since HPD has failed to meet its burden, the instant Article 78 proceeding must be considered timely.

Turning to the merits of Petitioner's arguments, 28 RCNY §3-02(p) states: "Occupancy rights of family. members. (1) The rights of family members of a tenant/cooperator who have requested to remain as the lawful tenant/cooperatorare governed by policies and procedures set forth In this subdivision.... (8) Where a family member applies to the housing company to remain in occupancy as a tenant/cooperator, the housing company shall act on the application within thirty (30) days of receipt by either requesting that HPD approve the application or by denying the application and notifying the applicant family members In writing of Its determination."

The entire process for obtaining family succession rights as set forth in 28 RCNY§3-02 is prospective and initiated by a tenant/cooperator's family member at the time that the tenant/cooperator either leaves the. apartment or dies. The process contemplates that the family member may continue to use and occupy the apartment which Is the subject of the request while the request Is pending (provided that they continue to pay the appropriate charges). There Is no provision, however, for the issuance of a new lease naming the requesting family member as the tenant/cooperator until the application process (including any appeal provided for In the event the request Is denied) becomes final, The burdens of prosecuting the proceeding and presenting proof are upon the family member claiming the rights. The regulations contain no provisions for HPD or the housing company to Institute or prosecute proceedings concerning family succession rights pursuant to 28 RCNY §3-02(p).

In contrast, once a lease has been Issued, 28 RCNY §3-18 contains regulations setting forth appropriate procedures for lease terminations or non-renewals. The rules, Inter alia, provide for the housing company to commence the proceeding and contain provisions for an administrative hearing from which there is no further administrative appeal. Instead, the rules specifically state that the administrative determination Is subject to direct review In a CPLR Article 78 proceeding. Furthermore, 28 RCNY §3-18(f) states;"... It Is the express intention of HPD that no other section of these rules Is applicable." Therefore, the proper proceeding to deal with the circumstances of the Instant matter, le; an allegedly Improper occupancy based upon an existing but allegedly Invalid lease, Is the commencement of lease termination or non-renewal proceedings pursuant to 28 RCNY §3-18.

In the Instant matter, HPD has attempted to create a proceeding not established by Its rules to address Petitioner's alleged violations of the Mitchell-Lama rules. HPD may be correct In its premise that Petitioner's occupancy of the Apartment Is In violation of the rules and his lease void because he has not compiled with appropriate transfer procedures and Is not entitled to family succession rights. Moreover, Petitioner may, by virtue of his actions, have subjected himself and his family to such sanctions as liability for the full market value of the occupancy of the Apartment (28 RCNY§3-18[h]) and removal of his name from any waiting list he may have properly been on (28 RCNY § 3-02 [h] [13]). However, none of that Justifies HPD inappropriate use of a family succession rights proceeding to remove Petitioner from the Apartment. The rules of an administrative agency, duly promulgated are binding upon the agency as well as any other person who might be affected. Since the process undertaken by HPD In the Instant matter is In violation of HPD own rules, the determination reached by HPD herein must be set aside.

Accordingly, it is ordered that the Instant petition pursuant to Article 78 of the CPLR Is granted to the limited extent that determination of HPD dated October 14,2002 In the instant matter Is hereby annulled and the matter Is remanded to HPD for further proceedings pursuant to the rules and regulations applicable to the termination' and non-renewal of publicly subsidized housing leases.

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Petitioners Claim Previous Court Determinations Were Arbitrary and Capricious

April 4, 2015,

A New York Family Lawyer said in this proceeding was instituted pursuant to Article 78 of the CPLR by Mr. and Mrs. Banks, public assistance recipients, compelling Respondents to pay the balance owed by the Banks for the installation of a heating system in their home.

Mrs. Banks is the fee owner of the home where she and her husband live together with their six minor children. In 1965, before the Banks were receiving public assistance, they ordered on time payment the installation of a heating system for the second floor of their home to make that floor habitable for the children of their burgeoning family during the winter. They have been receiving public assistance continuously since 1966.

Mr. and Mrs. Banks paid their monthly installments on the balance for the heating system through January 1969. There is no evidence that the heating system is defective, nor do Respondents in any way claim the installation is unreasonable to the Banks' circumstances. The issue then turns simply on installment payments for a four year old ordinary working heating system whose installation predated the using family's entrance on public assistance.

A New York Divorce Lawyer said on May 1969, the Banks were served with a summons in an action to recover the balance due on the heating system. They requested the Nassau County Department of Social Services to issue a special grant to pay the balance owed, which the Department refused. The Banks then resorted to their administrative remedies by requesting a fair hearing to appeal that determination. In his decision dated February 10, 1970, State Commissioner Wyman, one of the Respondents, affirmed the determination of the Nassau County Department of Social Services on the ground that special grants are permitted only for current needs and that a pre-existing debt is not a current need as defined by 18 NYCRR § 352.4(a) (11).

Nassau County Family Lawyer said petitioners then instituted this proceeding alleging that the determinations of the Respondents (both County and State levels) were arbitrary, capricious and erroneous as a matter of law. A second ground, lack of substantial evidence in the record of the fair hearing, was specifically abandoned by the Banks' attorney in open Court on the return date of the petition.

A Staten Island Family Lawyer said the respondents' refusal to make the requested grant is based essentially on two grounds. First, the need is not such a 'current need' as qualifies under the Regulation for assistance grants. Second, the Regulations permit grants to repair existing systems but not the cost of installing one.

A Queens Family Lawyer said that 18 NYCRR § 352.4(a)(11), in part, provides: 'Assistance grants shall be made to meet only current needs. Under the following specified circumstances payment for services or supplies already received is deemed a current need. (i) (lost or stolen checks). (ii) (current rent). (iii) (utilities). (iv) (prior rent, taxes or mortgage)'.

Respondents argue that the enumeration of circumstances under which grants can be made for supplies and services excludes repairs to property.

The Court can appreciate an argument that the regulatory provision for payment for supplies and services as 'current needs' does not encompass this grant. Quite plausibly the grant may be considered not for a 'supply' or a 'service' as those terms are commonly used, but rather for acquisition of a capital element of 'shelter'.

However, resolution of this 'current needs' point is not necessary since the real issue of the case centers about the Respondents' obligation to furnish shelter. Whether in their own home, in a rented apartment, or a motel room, or wherever, public assistance recipients must live decently someplace.

Respondents essentially argue that where the recipient lives in his own private home, the public shelter obligation is limited to repairing the property and not to installing or paying for any new heating system in a part of the home which previously did not have a heating system. Whatever technical appeal this might have to a literalist, it fails to take into account the fact that in Long Island in the winter, heating is a vital and indeed indivisible part of adequate shelter.

Respondents cannot let part of the recipient family freeze and in the final analysis must do something to assist them. If this family of eight people is to lose the use of the second story of the house, Respondents will then be in a position of relocating it in other premises, or possibly dividing it and moving out some of the children.

Since Respondents do not claim that the expenditures were unreasonable or improperly incurred, nor that published allowances will be exceeded, the Court will assume the requested payments are reasonable and proper. In Nassau County, anyone may easily gather from the newspapers and official pronouncements that residential quarters are in scarce supply and that recipients of public assistance are housed at high cost in insufficient motel facilities, or even in antiquated military housing from World War II.

Accordingly, it strains rationality to accept a position that since this family reasonably owes money on a heating system installed before it fell upon public assistance, the use of its own home must now be lost because the family cannot afford to make payment by dint of the very economic circumstances which placed it on public assistance in the first place. The odd feature of Respondents' argument is that they will not make payment because the system is working and will instead let it be removed from the house, but they will make payment if the system breaks down and requires repair.

The intense desirability of maintaining the family together where reasonably possible requires no citation.

In sum, the Court rules that Respondents must provide shelter for the Banks family so long as they are recipients of public assistance and that under the circumstances presented here, Respondents should make the requisite provision to assure proper heating of the second story of the residence.

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Petitioners Seek to Renew a Motion to Dismiss

April 3, 2015,

A New York Family Lawyer said that, upon the foregoing papers, petitioners individually, as preliminary executor of the estate of the decedent and as the vested beneficial owner of shares of the respondent 4C Foods Corp. held by certain trusts, moves for an order: (1) pursuant to CPLR 2221 granting leave to renew respondent's motion to dismiss the Petition that was granted in this court's order dated December 5, 2012, and upon renewal, denying respondent's motion to dismiss the petition; and (2), pursuant to CPLR 3025, granting petitioners leave to file and serve an amended petition.

Petitioners' motion is denied with respect to petitioners' claims pursuant to Business Corporation Law §§ 623 and 806. With respect to the proposed causes of action premised on the breach of the implied covenant of good faith and fair dealing and breach of fiduciary duty, the motion to amend is denied, but with leave to file an amended pleading containing such causes of action upon the following events: (1) the executor of the estate of the decedent, is barred from transferring voting shares individually; (2) these voting shares are purchased by respondent, its directors and or its majority shareholders; and (3) such causes of action are not otherwise rendered moot by any determination made in the Nassau County declaratory judgment action. The motion for leave to file an amended petition is granted with respect to the proposed declaratory judgment claim in which petitioner seeks a declaration that the January 11, 2013 notice addressing the transfer of voting shares formerly controlled is a nullity. The special proceeding is converted to a declaratory judgment action, but any further proceedings in the action are stayed pending the determination of the Nassau County declaratory judgment action.
In the dismissed petition, petitioners contended that, pursuant to Business Corporation Law §§ 623 and 806, they were entitled to a determination of the value of their shares in respondent and a judgment providing that respondent was required to pay petitioners fair value for their shares.1 Petitioners are a minority group of shareholders of respondent, a closely held family corporation. The minority and majority groups of shareholders have had a contentious relationship for years. In 2007, the majority group passed an amendment to the shareholders agreement that gave the majority shareholders the right to approve or reject any transfer of shares and that allows respondent to buy the shares for which transfer approval has not been granted. This amendment to the transfer provisions was declared legal and enforceable in a previous declaratory judgment action.

A New York Divorce Lawyer said at issue in the instant proceeding was a December 2, 2011, resolution that amended the certificate of incorporation and the shareholder's agreement to provide for a four for one split of the non-voting shares for each shareholder. Although the amendment did not alter the percentage of shares held by the majority and majority shareholders, the split reduced the per share value of each share. Petitioners contended that this amendment would thus allow the majority shareholders to take advantage of the limitation on transfer provisions (Fourth Amendment § 4.3) to pick off petitioners' voting shares at a reduced price. This issue was not merely hypothetical, in that executor who controlled a portion of the minority shares, was on her deathbed at the time the majority shareholders decided to amend the certificate of incorporation in order to change the number of shares. Further, upon her death in December 2011, and the subsequent probate of her will, the transfer of her shares or those held for her benefit from her estate to the beneficiary, petitioner another minority shareholder, is a transfer that will be governed by section 4.3 of the fourth amendment.

A Westchester County Family Lawyer said that upon, respondent's declining to recognize the applicability of Business Corporation Law § 623, petitioners commenced the proceeding alleging entitlement to appraisal rights under section 623 and respondent moved to dismiss the petition. In support of the petition, and in opposition to respondent's motion to dismiss, petitioners had asserted that they were entitled to an appraisal pursuant to section 623 because the amendment adversely altered their redemption and voting rights under Business Corporation Law § 806(b)(6)(B) and (D). In the December 5, 2012 order deciding respondent's motion to dismiss, the court stated that: “Upon considering the language of the statute as interpreted by the extent court decisions, this court finds that the amendment here does not alter any of petitioners' rights under section 806(b)(6). In this regard, the splitting of the stock does not affect any right to a preference for purposes of section 806(b)(6)(A) since, prior to the amendment, all of respondents stock was common stock and none of its stock carried with it any preferential rights. With respect to section 806(b)(6)(B), respondent's limited right to repurchase shares under section 4.3 of the fourth amendment to the shareholders agreement upon a decision by a majority of the shareholders to reject all or part of a transfer is not a redemption right for purposes of the statute.”

A Suffolk County Family Lawyer said that because the court found that the amendment at issue here was not an adverse alteration of the certificate of incorporation for purposes of Business Corporation Law § 806(b)(6), it also found that petitioners do not have a right to appraisal under Business Corporation Law § 623. This court noted, however, that: “Respondent has not presented a business justification for increasing the number of shares, and, as such, petitioners' concern that the majority shareholders may intend to take advantage of the reduced per share value of the corporation in order to pick off their voting shares may not be unreasonable. Nevertheless, the amendment at issue here is simply not one of the enumerated changes that would allow an appraisal action. It would appear that petitioners' claim would be better addressed if and when the majority shareholders use section 4.3 of the fourth amendment to force a selective purchase by respondent of a portion of the shares to be transferred from the decedent’s estate to petitioner in order to reduce the minority shareholders' voting stake in respondent. At that time, petitioner may have an argument that any such limitation on the transfer by the majority shareholders would violate the fiduciary duty majority shareholders of a closely held corporation owe the minority shareholders.”

In moving to renew the motion to dismiss and to amend the petition, petitioners allege that the majority shareholders have now taken the action that the petitioners feared would be made possible by the amendments to the certificate of incorporation and shareholders agreement discussed above. Namely, as executor of the estate, gave notice, pursuant to the stock transfer provisions (Fourth Amendment § 4.3), of his intent to transfer the shares held by the estate to the beneficiary. While, in their response, dated January 11, 2013, the majority shareholders allowed the transfer of the non-voting shares, they declined to allow the transfer all of the voting shares to him unless the court, in a declaratory judgment action respondent has commenced in Nassau County, found that it was improper to disallow such a transfer. Petitioners contend that they are entitled to renewal and leave to amend the petition because this refusal to transfer the voting shares shows an actual violation of their rights under Business Corporation Law § 806.
Initially, the court need not decide whether renewal can be predicated on facts occurring after the submission of a motion. The new facts here, however, do not alter the court's conclusion that the stock split amendment to the certificate of incorporation was not an adverse alteration for purposes of Business Corporation Law § 806(b)(6). Namely, in reaching its conclusion, the court emphasized that the stock split amendment simply did not alter any of the stockholder rights that are deemed to constitute adverse actions against shareholders under section 806(b)(6). In doing so, the court recognized that majority shareholders could use the amendment here to pick off voting shares at a reduced price, but found that such an alteration was more attenuated than those courts had found to constitute adverse amendments under section 806(b)(6).

Relying on the same facts alleged with respect to the Business Corporation Law claims, petitioners also seek to amend the petition to add causes of action for breach of fiduciary duty against the majority shareholders (proposed third-claim for relief) and the board of directors (proposed fifth claim for relief), breach of the implied covenant of good-faith and fair dealing against the majority shareholders (proposed fourth claim for relief) and declaratory judgment declaring that the conditional nature of respondent's January 11, 2013 response to the stock transfer request renders it a nullity (proposed sixth claim for relief). Initially, with respect to these claims, the court notes that the actions of the majority shareholders may implicate the implied covenant of good faith and fair dealing.

Nevertheless, at this time, petitioners' causes of action based on the breach of the covenant of good faith and fear dealing and the breach of fiduciary duty are premature, as petitioners still have not alleged grounds from which any cognizable damage may be inferred.

Given that the breach of the implied covenant of good faith and fair dealing and breach of fiduciary duty causes of action are premature, petitioners' motion to amend is denied with respect to those claims on the current facts. On the other hand, in the event that, following the resolution of the declaratory judgment action, the transfer is ultimately barred, the voting shares are purchased by the directors/majority shareholders and petitioners' assertions are not otherwise mooted by the declaratory judgment action, petitioners' causes of action may be cognizable at that time. As such, petitioners are thus granted leave to submit an amended pleading if these conditions have been met.

The claim seeking a declaration that the January 11, 2013 notice (i.e. respondent's notice declining to allow the transfer of the voting shares) is a nullity is not palpably insufficient or patently devoid of merit. Petitioners are thus granted leave to amend. There are, however, no grounds supporting the claim as a special proceeding. Accordingly, the court exercises its authority to convert the proceeding to a declaratory judgment action, and petitioners are directed to file and serve the amended pleading in the form of a complaint rather than a petition.
The court notes, however, that the issues relating to the validity of the January 11, 2013 notice may necessarily be decided as part of the declaratory judgment action that has already been commenced in Nassau County. As such, and in order to avoid the waste of judicial resources and to avoid the possibility of inconsistent decisions, this court exercises its authority to stay this action until the resolution of the Nassau County declaratory judgment action. Petitioners thus should not file or serve any amended pleading until this stay is lifted by the court. In addition, while the court does not have the power to order a joint trial or consolidation of actions sua sponte, the parties may find it advisable to move for such relief given the overlapping factual and legal issues that are before this court and the Supreme Court in Nassau County.

If you want to contest the probate proceedings, seek the help of a Nassau Family Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates.

Court Considers Summary Judgment Where There is No Issue of Material Fact

April 2, 2015,

A New York Family Lawyer said that, this motion arises out of an underlying personal injury action, filed in this Court in June 2009, wherein the plaintiff alleged violations under Labor Law §§240 and 241. Plaintiff fell from a ladder while performing construction work on the improved real property owned by defendants. Plaintiff is alleging that the statutory residential exemption does not apply as the real property is in actuality, the site of plaintiff's business entity.

A New York Divorce Lawyer said that on September, 2008, the owner of the property entered into a work agreement which provided that his company was to "repair and painting" the "residence", and the contract was executed by as owner of the subject premises. Such work included the repair of shingles, siding, and painting the house, including the windows and window trimming. According to the defendants, the premises is and was at the time of the underlying action, a private one-family residence and the home of multi generations of the family. The real property included a main house and a renovated cottage. The work was to be performed on the main house.

The property has been in the family and owned by them since November 2, 1983. In 1987, defendant and her three children, formed the partnership, Sleepy Hollow Estates. The partnership's essential purpose was for the management of its real estate holdings and was part of an estate plan. Shortly after the formation of the partnership, the owner transferred their fee interest in the subject real property to the defendant partnership.

A Nassau County Family Lawyer said that the plaintiff argues that the defendants have set up a "sophisticated real estate partnership" and the construction work was performed for the purposes of improvement on one of the partnership's assets; granting that the statutory exemption would contravene the public policy purposes of the statutory exemption in Labor Law § §240 and 241; and the premises is situated within the Town of Oyster Bay, whose Building Code defines one-family dwellings as a dwelling used solely for residential purposes, and that house one family unit.

A State Island Family Lawyer said that Ruth Russo, the family matriarch, lived at the premises with her husband, Andrew Russo, her daughter, and son-in-law, as well as her granddaughter and her husband. The family members do not pay rent. No rental income is derived from the property in question. Plaintiff contends that there are in fact three families residing in the home and thus it cannot be a single family home eligible for the exemption.

Plaintiff, as an employee performed the painting work on the subject premises. On August 26 2008, plaintiff, during the course of performing these duties, sustained injuries after falling from an extension ladder. Plaintiff contends that the defendants directed and controlled the work and supplied the allegedly defective ladder, which caused his fall. Plaintiff submits into evidence the following: an affidavit of a fellow employee of Cordero Corp.; lease agreement between defendant; and the work agreement between the Brothers and Sleepy Hollow Estates.

Defendants argue that the exemption under the Labor Law provisions is applicable, as the business entity is "nothing more than a legal vehicle of convenience" for the Russo family, and the business acts performed on the premises are merely incidental. They deny providing the allegedly defective ladder and that they controlled the work. Defendant submits the following: copies of the pleadings; transcripts of the depositions of plaintiff, on behalf of Sleepy Hollow Estates; and affidavits and extended family member.

A Court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is; therefore, entitled to summary judgment as a matter of law. Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial.

The burden on the party moving for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of material issue of fact. Once the initial burden has been met by movant, the burden shifts to the party opposing the motion to submit evidentiary proof in admissible form, sufficient to create material issues of fact requiring a trial.

Generally, Labor Law §240 provides in relevant part; "all contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

Labor Law § 241 sets forth specific safety requirements for contractors and owners and their agents regarding such work, with the same exceptions.

In reviewing the record setting forth the facts of the instant case, there is no evidence to support that the defendants directed or controlled plaintiff's work. Plaintiff's self-serving affidavit only avers that an individual that may have been whose identity could not be confirmed, gave him three ladders to use one from which he fell. This court noted, however, that the owner's involvement consisted of determining what portion of the premises to paint and what type of paint to use, and did not include any supervision of the manner or method of the painter's work nor did the owner direct the painter to use the scaffolding in the performance of his work. Those facts are insufficient to demonstrate direction and control within the meaning of Labor Law § 240(1). The remaining issues raised by Plaintiff are whether this is a one-family dwelling and whether the actual use of the subject premises was for residential or commercial purposes, or both.

Although it is the defendants' initial prima facie burden, the Court has considered whether plaintiff's reliance upon the Town of Oyster Bay Code to define a single-family dwelling, is proper. It is noted that plaintiff provides only a section of the Code and he does not provide citations. The provision upon which he relies states in relevant part: "a single or one family dwelling is a building designed for and occupied exclusively as a home or residence for not more than one (1) family."

The defendants, in their reply papers, provide the citation and Code provision in full: "buildings for the purpose of this chapter shall be classified in respect to their occupancies as follows: A. one-family owner-occupied dwellings: buildings containing not more than one dwelling unit occupied exclusively for residential purposes by the immediate family of the owner-occupant, not having more than one kitchen and no portion of which is used for the accommodation of roomers or boarders. B. One-and two-family dwellings: buildings containing one or two dwelling units, with less than four lodgers with a family in either one of such dwelling units."

The authority of a Town to enact zoning legislation is derived from Section 261 of the Town Law. Pursuant to this statute, the Town Board is empowered by Ordinance "to regulate and restrict the density of population, and the location and use of buildings for residence or other purposes." Said power is granted for "the purpose of promoting the health, safety, morals, or the general welfare of the community.". Therefore, the above referenced Code was enacted for the narrow purpose of enforcing the municipality's zoning laws. It cannot be expanded for application to the case at bar.

It also is relevant to set forth the essential purpose of the homeowner exemption, which was added to Labor Law § 240(1) and § 241 in 1980. The exemption was intended by the Legislature to shield homeowners from the harsh consequences of strict liability under the provisions of the Labor Law and to reflect the legislative determination that the typical homeowner is no better situated than the hired worker to furnish appropriate safety devices and to procure suitable insurance protection. Since the enactment of this amendment, the courts have repeatedly granted an exemption from the liability imposed by the Labor Law upon homeowners who contract for repair work, where it is clear that the property is used solely as a one- or two-family dwelling and where the homeowner does not direct or control the work.
As to the use of the premises, it is well settled that the homeowner exemption from Labor Law liability does not apply where a one-family dwelling is used by its owner exclusively for commercial purposes. Notwithstanding the foregoing, the Court is aware, based on the plethora of case law, that, generally, an owners' use of a portion of their residence for commercial purposes does not automatically cause them to lose the protection of exception from liability of a plaintiff's claim under Labor Law §§ 240 and 241.

In determining whether or not to apply the dwelling exemption to those situations, that fall somewhere between exclusive residential and exclusive commercial use, the Court of Appeals, indicated that a strict construction is to be applied when interpreting Labor Law §§ 240(1) and 241. There, the plaintiff was injured while working on the roof of a one-family house that was being used as rental property. The owners of the house argued that though they did not reside there, the property was being used as a one-family dwelling, and thus were entitled to the statutory exemption. The Court of Appeals, in rejecting that argument, held that the dwelling exemption should not be "expanded to encompass homeowners who use their one- or two-family premises entirely and solely for commercial purposes".

It is uncontroverted that the extended Russo family reside in this single family dwelling. It is further established that the residence was held in the name of a partnership, which was comprised of family members. Lastly, it was conceded that management activities pertaining to rental properties also owned by the partnership, including maintaining copies of business records, receipt of rent collected from other properties and telephone calls with tenants of other properties were made and received at the subject dwelling. No question of fact was raised with regard to the subject property being a rental unit, in fact, the evidence was to the contrary.
On the facts before the court, the use of the residence in the past, up to and including the time of the accident, had been primarily residential with ancillary commercial use. In sum, the defendants seek the application of the dwelling exemption where a homeowner contracts for such work upon a single structure used as both a dwelling and a place of business.

Owners of one or two-family dwellings who did not direct or control the work, are entitled to the protection of the homeowner exemption, notwithstanding the presence of some commercial activity on their properties. The Court of Appeals has held that the exemption was applicable to an incident involving work on a barn roof, which housed not only the defendant's personal belongings, but also his neighbor's belongings as well as a separate section of the barn leased by defendant to nine individuals to store their golf carts for an annual fee. In a second case, decided at the same time, a woman who added a bedroom to the first floor of her home, with a sliding glass door leading to the backyard, was entitled to the exemption, notwithstanding the fact that she operated a children's day care center in her home. A residence that houses a business may retain its character as a home.

Looking at the site and purpose of the work, which consisted of the installation of a door and window in the dining room necessitating the painting of the exterior of the residence, it is clear that the home improvement was not intended to benefit the commercial usage of the property, but rather related to the residential use of the defendants home. The defendants are therefore qualified for the exemption.

Where the single family home was used as a residence, was not an income producing property, the fact that the deed was in the name of the partnership does not exclude application of the exemption, whereas here, any commercial benefit was ancillary to the residential purpose of the home.

With regard to Plaintiff's position that three families live in the home, thus it is not a "single-family" home contemplated by the statute, it is untenable. No evidence was offered to counter Defendants proof that the dwelling is a single-family home. The nature of the use of the premises is controlling, rather than the relationship of the people residing in the home. Thus the extended family residing in the subject dwelling did not deprive the owner of the homeowner exemption under Labor Law.

Accordingly, the defendants' motion is granted.

If you are facing similar situation, seek the help of a Nassau Family Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates.

Petitioner Seeks to Modify Visitation

April 1, 2015,

A New York Family Lawyer said that, the petitioner/mother, and the respondent/father, were divorced by judgment of divorce, dated February 14, 2000 and entered by the Nassau County Clerk on February 15, 2000. The judgment of divorce granted the parties joint legal custody of their children. Physical custody was awarded to the petitioner, subject to the respondent's right to visitation as set forth in their separation agreement, dated August 31, 1998, which was incorporated (but did not merge) with the judgment of divorce. The separation agreement provided, among other things, that the father would have mid-week overnight visitation with the children.

On April 17, 2003, the petitioner filed an application with this Court for modification of the visitation provisions of the judgment of divorce. The petition requested that the respondent's mid-week visitation be eliminated, as it was "not practical" because her new husband, had secured employment in the Albany, New York area. The petition stated that she and her four children (the two Jones children and the two children of her current marriage) would relocate to the Albany area to join her husband on or about June 30, 2003, at the end of the school year.
A Nassau Visitation Lawyer said that, on June 5, 2003, the Court ordered that the parties submit to an investigation and report with the Nassau County Probation Department, Family Division. The Court also ordered that the forensic evaluator, prepare a report. On June 30, 2003, the respondent filed an order to show cause with this Court, requesting that the petitioner be enjoined from relocating the children from her residence in Williston Park or, alternatively, why the respondent should not be given custody of the children. A temporary order was made thereafter, dated August 28, 2003, which restrained the petitioner from leaving the jurisdiction of this Court with the children until the time of hearing. The petitioner made arrangements for the children to remain in the same school district in Nassau County for the start of the 2003-2004 school year by residing with their maternal grandmother.

A New York Divorce Lawyer said this Court conducted an in-camera interview with the children on October 30, 2003. A hearing was held on January 26 and 27, 2004. The court heard testimony from the following witnesses: the petitioner; the petitioner's husband; the petitioner's father-in-law; and the forensic evaluator.

The parties share legal custody of the children, with residential custody to the petitioner, as a result of their judgment of divorce. In January 2001, almost one year after the parties' divorce was concluded, the petitioner married her current spouse, who was employed by the Village of Williston Park at the time. After the marriage the petitioner, the children, and eventually the two children of this second union lived in Williston Park in a house owned by his parents. An increase in property taxes led his parents to decide to sell the house in which the petitioner and their son lived. His parents offered to assist with housing expenses if he and the petitioner decided to relocate to the Albany area.

A Westchester County Family Lawyer said that thereafter, and as a result of that conversation with his parents, he began to search for a new job, in an effort to effectuate this relocation. In March of 2003, he was offered a job with a waste and recycling company in the Albany area. Although it is the petitioner's contention that she discussed the possibility of relocation with the respondent, there is some dispute as to whether the respondent initially voiced any objection. In any event, he accepted the position and the Smith's house was placed on the market. The house was sold and his parents purchased a home in Ballston Spa (Saratoga County) for the petitioner, and the children. The petitioner ultimately commenced the subject proceeding to terminate the respondent's midweek overnight visitation.

Suffolk County Family Lawyer said the CSW testified as to her forensic evaluation of the parties and their children. Her two written reports, dated August 27, 2003, and October 21, 2003, were admitted into evidence. She testified that based on the strong relationship that the Jones children enjoyed with both parents and the distress they displayed over the possible inability to maintain that relationship, she initially recommended that the petitioner should remain in the Nassau County area with the children. In the event that the petitioner refused to remain in the area, she suggested that the court should consider granting custody to the respondent. Her recommendation in this regard was based in part on her perception that while the petitioner understood the quality of the relationship between the children and the respondent, the petitioner placed her own interest in relocating ahead of that relationship regardless of the impact on the children. The petitioner made very clear to her that she intended to relocate with or without her children. She was also concerned that in the event the petitioner was permitted to relocate with the children, the petitioner would not continue to permit the respondent to have significant access to the children absent a clear and specific visitation schedule.

In her subsequent report, she found that the children appeared to be suffering from greater amounts of conflict and in need of a resolution to the conflict. At the same time, the respondent's involvement with the children appeared to be diminishing. The respondent missed several school events, and the children were upset that the respondent was sending his wife to pick the children up for visitation because of his work obligations. Based on the need to resolve the anxiety experienced by the children and the respondent's diminished involvement with the children, she recommended that the petitioner be permitted to relocate with the children and that the respondent be given an extensive and structured visitation arrangement.

During the course of the hearing, and at the court's request, she interviewed both of the children. After doing so, she reported that the daughter was very ambivalent about relocating to Ballston Spa, and indicated that she would like the court to grant custody to the respondent.

Likewise, Joe was extraordinarily adamant that he wished to remain with his father. Both children expressed displeasure with their mother for curtailing their contact with their father since her relocation to Ballston Spa.

The Court considered the recommendation of the children's Law Guardian, stated that she questioned the feasibility of the respondent's ability to maintain a meaningful relationship with these children, in the event petitioner was permitted to relocate. She relayed that the respondent had maintained regular contact with the children, participated in the children's school activities, and made every effort to be a part of their lives. Her conclusion was that petitioner's application should be denied. Her position was that relocation would not be in the best interests of her clients.

The court has also considered reports of an investigation by the Family Division of the Nassau County Probation Department, which are deemed court's exhibits. The Probation Department reported favorable home studies for both the petitioner's new home in Ballston Spa and the respondent's new home in Ozone Park. Without access to the forensic investigation reports (which were not provided to the Probation Department), no formal recommendation was made. It was conditionally recommended, however, that strong consideration be given to awarding custody of the children to the respondent. This was advised because the petitioner would not consider obtaining housing within Nassau County.

Petitioner seeks modification of the parties' Judgment of Divorce, dated February 14, 2000, and separation agreement dated August 31, 1998, which was incorporated by reference. It should be noted that the petitioner has not asked the court for permission to relocate with the children. Rather, the petitioner's modification petition made clear that the petitioner had already decided to relocate with the children, and sought modification of the controlling visitation provisions by terminating the respondent's overnight midweek visitation. The respondent, in his order to show cause, seeks to prevent the petitioner from relocating the children.

The Court of Appeals' decision in 1996 is the cornerstone for law governing relocation matters in New York State. In the said case, the Court of Appeals formulated a "best interest standard" and held that each particular relocation application should be decided on its own merits, after consideration of all facts and circumstances, with the "predominant emphasis being placed on what outcome is most likely to serve the best interests of the child".

The Court set forth a series of "factors" to evaluate when making a relocation determination. These are: (1) each parent's reasons for seeking or opposing the move, (2) the quality of the relationships between the child, the custodial and non-custodial parents, (3) the impact of the move on the quantity and quality of the child's future contact with the non-custodial parent, (4) the degree to which the custodial parents and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the non-custodial parent and child through suitable visitation arrangements.

While these "factors" have been set forth by the Court of Appeals, they are not all inclusive or to be strictly applied. Rather, the final determination rests with the court, based upon all the proof in the case, and "whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests".

This court has duly considered and examined the testimony of the various witnesses. This court also based its decision on the in-camera with the Jones children and the recommendation of the Law Guardian. Each relocation case must be decided on its own merits. The greatest weight must be afforded to the best interests of these children. The factors set forth in the said case have been weighed against the evidence put forth by petitioner.

Therefore, in applying the principles set forth above to the instant matter, in accordance with the decision rendered from the bench after hearing on January 27, 2004, and after having thoroughly considered and reviewed all relevant factors set forth, this court finds that the petitioner has failed to meet her burden of proof, by a preponderance of the credible evidence, that a relocation would serve the best interests of the Jones children. Moreover, although the children are not so advanced in age that their wishes should be the overriding concern, it is clear that they would feel more comfortable remaining with their father.

Accordingly, the custody and visitation provisions of the parties' judgment of divorce and separation agreement are hereby ordered modified. The parties shall continue to share joint legal custody. Physical custody is transferred to the respondent. The petitioner shall have visitation with the children on the first and third weekends of every month. The petitioner shall exercise one of these weekends in Nassau County, and may exercise the other in Ballston Spa, New York. With the exception of the midweek overnight visitation, which is eliminated, any additional visitation provisions specifically set forth in the parties' judgment of divorce and separation agreement that belonged to the respondent shall now belong to the petitioner.
If you want to file for the custody of your child, seek the help of a Nassau Order of Protection Attorney and Nassau Child Custody Attorney at Stephen Bilkis and Associates.

Respondent Seeks to Dismiss Proceedings

March 31, 2015,

A New York Family Lawyer said that, by motion dated January 5, 2009, respondent seeks to dismiss the instant proceeding, alleging that she is not a licensee and therefore cannot be evicted in a summary proceeding. Petitioner opposes the motion and, pursuant to CPLR 3212 (b), requests summary judgment and a judgment of possession.

A Nassau Divorce Lawyer said that, according to the affidavits of the parties, respondent, a 42 year-old attorney, is petitioner's daughter-in-law and was married to petitioner's son in 2001. Soon thereafter, the couple moved into the subject premises located at 345 Harbor Drive, Oyster Bay, New York. The premises are described as a "beach cottage" located on a parcel of land solely owned by petitioner, whose own residence is on the same parcel of land.

Respondent and her husband resided together at the subject premises with the permission of petitioner until March 2007, when respondent's husband moved out. Respondent's husband then filed a divorce proceeding, which is currently pending in Suffolk County Supreme Court. Petitioner has served respondent with a 10-day notice to quit pursuant to RPAPL 713 and commenced the instant summary proceeding to evict the respondent from the subject premises, contending that respondent is a licensee.

A New York Divorce Lawyer said that pursuant to RPAPL 713 (7), "a special proceeding may be maintained" where respondent "is a licensee of the person entitled to possession of the property at the time of the license, and his license has been revoked by the licensor." Petitioner contends that respondent daughter-in-law was a licensee and that her permission to reside at the subject premises was revoked when he served the 10-day notice to quit. Respondent, however, claims she is entitled to possession because, as a family member of the property owner by virtue of her marriage to petitioner's son, she is not a licensee.

A Queens Family Lawyer said there is case law to suggest that "occupancy due to familial relationship does not constitute a licensee agreement as contemplated by RPAPL § 713 (7)". Respondent attempts to construe this language to mean that any kind of familial relationship does not constitute a licensee agreement. Although the courts have recognized "various forms of family relationships ranging from spousal, parent and child, and even non-married couples," the courts have never made a blanket assertion that all family members will be exempt from licensee status. Courts must evaluate each individual familial relationship on a case-by-case basis to determine whether a licensor-licensee relationship exists. An extensive review of the case law reveals that the application of licensee status to this specific family relationship, in which a father-in-law attempts to treat his daughter-in-law as a licensee, is a case of first impression in New York.

A Long Island Family Lawyer said it is well settled that a spouse does not qualify as a licensee. In the said case, the petitioner husband and respondent wife lived together in the matrimonial domicile until the petitioner moved out due to marital problems. While a divorce action was pending, the respondent remained in possession and petitioner attempted to evict her as a licensee. The Appellate Division held that the respondent wife did not qualify as a licensee and therefore could not be evicted in a summary proceeding. The holding was based upon the premise that respondent wife's possession of the subject premises was not by virtue of her husband's "permission," but rather "because of special rights incidental to the marriage contract and relationship". So long as the marriage relationship remains intact, a spouse has "the obligation by virtue thereof to support and maintain" his or her spouse.

Despite the varying familial relationships in the above-referenced matters, each and every case wherein no licensee relationship was found was decided on the same reasoning. The primary basis for finding that a family member was exempt from licensee status was that the family member lived together with the property owner in the matrimonial domicile. In interpreting the definition of a "family," courts have traditionally considered whether the parties lived together "in a family unit" with "some indicia of permanence or continuity". Whether the parties resided together has often been the "critical factor" in determining whether they are to be considered a "family" for legal purposes. Another consideration in the majority of the above-cited cases was whether there was a duty of the property owner to support the alleged licensees. Encompassed in the duty to support is the parties' social and financial dependence. It is well established that "the term family should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage certificate. The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life".

As the relationship between a father-in-law and daughter-in-law would not ordinarily be recognized as part of the traditional nuclear family, this court acknowledges that it would be necessary to evaluate the relationship in the context of the "reality of family life." However, this analysis is only applicable when the parties involved purport to be a family by reason of their shared residence and mutual dependence.

In the instant case, it is uncontroverted that petitioner and respondent never lived together in the subject premises as a family. The fact that the subject premises are located on the same parcel of land as petitioner's own house is of no consequence. In every scenario wherein a family member was not recognized as a licensee, that family member lived together with the property owner under one roof, as a co-occupant of the same household. Furthermore, respondent is not financially or socially dependent upon the petitioner. Petitioner has no legal duty to support his own son past the age of majority; it therefore follows that he has no legal duty to support his daughter-in-law, who is a grown woman and an attorney. Accordingly, this court finds that respondent is a licensee and, as such, respondent's motion to dismiss is denied.

What remains is whether respondent may be evicted in a summary proceeding. Though eviction of licensees is within this court's jurisdiction, courts have held that "where a matrimonial action is pending between a husband and wife, then occupancy and possession of the marital home should be determined by proper proceedings in such action". This court applied similar reasoning, wherein the husband of the respondent once owned the subject property. Due to financial difficulties in paying the mortgage, he transferred it to his sister, the petitioner. The respondent and her husband then entered into divorce proceedings. Thereafter, the petitioner attempted to evict respondent, her sister-in-law, from the marital home as a mere licensee. This court held that the question was better litigated in Supreme Court pending the outcome of the divorce proceedings.

The instant proceeding may be distinguished from Soto in that here there is no question of whether the property was marital property or separate property. In Soto, title to the property had at one time been in the hands of a party to the marriage, therefore there was some debate over ownership that was better left to a court with jurisdiction over the marriage. Here, title to the property was never in the hands of a party to the divorce action. The subject premises is solely owned by petitioner and never belonged to respondent's husband. As the property could never become the subject of a dispute during the division of the marital assets following dissolution of the marriage, there is no reason to leave the decision regarding who has a superior property interest to the discretion of the Suffolk County Supreme Court.

Pursuant to CPLR 3212 (b), "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." Here, it has been established that respondent is a licensee and it is uncontroverted that petitioner served respondent with a valid 10-day notice to quit. There are no questions of fact remaining that would necessitate the case going forward to trial. Therefore, petitioner is granted summary judgment and is awarded a judgment of possession with warrant of eviction stayed until March 31, 2009.

If you want to file for divorce, seek the help of a Nassau Divorce Attorney and Nassau Spousal Support Attorney at Stephen Bilkis and Associates.

Court Decides How Domicile of Claimant Effects Case

March 30, 2015,

A New York Family Lawyer said that, in this probate proceeding objections were filed and a jury demanded by respondents. A motion is now made by them to dismiss the petition before any trial on the merits upon the ground that the decedent was not a (domiciliary) resident of Nassau County at her death on February 14, 1977 as specified in SCPA 206, subd. 1. They request that the proceeding be forwarded to New York County as the "proper county of residence" and also for the convenience of witnesses.

In support of the motion there have been filed affidavits of respondents' attorney and of respondent, along with copies of affidavits and exhibits which had been previously submitted to this court in connection with an application to revoke letters testamentary which had been issued to the proponent here on the estate of this decedent's husband, who died on May 26, 1975. In opposition to the motion various other facts are asserted to sustain proponent's claim that Nassau County was the domiciliary residence of decedent and both attorneys have submitted memoranda in support of their respective positions. The court has examined them and will discuss below the various facts alleged by both sides.

A New York Divorce Lawyer said the moving papers here argue that the marital domicile of this decedent and her predeceased husband was an apartment on 196th Street in New York County. They concede that she was injured in an automobile accident and removed to one or more New York City hospitals before going to a nursing home in Nassau County where she died. Movants contend only that as a result of a brain injury received in that accident her condition became progressively worse so that she became incompetent; that as a result of such incompetence she did not have the necessary intent to change her domicile and therefore it remains in New York County.

A Queens Family Lawyer said the proponent asserts in opposition the previous finding of this court (as to this more below); that the marital domicile was broken while both decedents were hospitalized when the husband authorized his brother (proponent here) to remove his clothing to the brother's home in Old Westbury, Nassau County; that the husband's bank accounts were also removed to this county pursuant to a general unlimited power of attorney which the movants concede was granted on April 21, 1975 to the proponent.

A Long Island Family Lawyer said that the proponent also asserts that proceedings in Nassau County Supreme Court to appoint a conservator for decedent are res judicata on the question of this decedent's domicile because it was held by the justice presiding there in an opinion on February 19, 1976 that this decedent was then a "resident of the County of Nassau; that she had not theretofore been judicially declared incompetent." Proponent argues that the conservator proceedings and the finding of residence in Nassau County is binding upon the respondents because one of them and their present attorneys were parties therein, contested the appointment of this proponent as conservator and cross-pleaded for respondent's appointment instead.

The ruling of the court is that the finding of "residence" by the Supreme Court is not binding as res judicata or on collateral estoppel because that part of the decision referred only to venue of that court and was not an issue necessarily determined or essential to the appointment of a conservator under art. 77 of the Mental Hygiene Law. Other findings in the Supreme Court, however, were essential to the judgment and constituted a determination against movants' allegations of fraud and falsity interposed therein as against this proponent. The Supreme Court also determined that the decedent had not been declared incompetent prior to that proceeding and of course it did not therein make any finding of incompetence.

The movants affirmatively allege that decedent was a "domiciliary" of New York County at the time of her death and that her residence continued specifically to remain in Manhattan at 561 West 169th Street, which concededly was the marital domicile. The change of that domicile, however, was determined by the earlier decision of this court in the decedent's husband's estate. Movant Farmer's petition therein was dismissed, and properly so, upon the grounds that he lacked status having no pecuniary or other interest in that estate. This court's decision in that estate is now held to bind movants on the principles of equitable estoppel, or as res judicata not because of Farmer's personal appearance or the part he played, but because both Farmer and Warner (the movants) are claiming here by privity with and through this decedent; the latter herself having been a party to her husband's estate proceedings.

isdiction in the earlier proceeding and binds the movants here whether by res judicata or the principles of equitable estoppel. It would be anomalous for this court collaterally to reverse its prior decision based upon the movants' present offer of proof which is contrary to its previous findings that the marital domicile was changed by the husband prior to his death.

These movants are now claiming, in other words, as distributees of the widow, that the marital domicile was not changed and continued to be at 169th Street even up to her death, despite the fact that this court had made a judicial determination in her husband's estate, binding upon the widow, that he, and therefore both, were at his death domiciled in this county at Guinea Woods Road in Old Westbury, Nassau County. And the same address was stated in the petition there as her residence!

The court has confined the foregoing discussion to the factual allegations of the parties. The motion, however, brings up a question of its jurisdiction worthy of deep analysis in the application of SCPA 206 which reads (in part) as follows: " § 206. Exclusive jurisdiction. The surrogate's court of each county has jurisdiction exclusive of every other surrogate's court over the estate of 1. any domiciliary of the county at the time of his death, disappearance or interment; 2. any non-domiciliary of the state who."

That statute was adopted in 1966 and took the place of Surrogate's Court Act § 45 with several changes but having the same caption referring to the exclusiveness of jurisdiction. In his Practice Commentaries to that statute noted that the term "jurisdiction" was used unequivocally but perhaps with "no policy reason for so rigidly adhering to the concept of 'jurisdiction.' " His analysis, however, warned that it does deal with the "comparatively rigid concept of subject matter jurisdiction as opposed to the flexible concept of venue."

The courts have nonetheless applied the rigid concept where direct attack was made. However, this court recommends that the Legislature take under consideration a relaxation of that rigid approach by amending SCPA 206 so as to delete subd. 1 and incorporate the substance in a different section treating all domiciliary inhabitants of the state as under the general subject matter of jurisdiction. Each one of the branches of the surrogate's court in the various counties should be authorized to accept an estate, but subject to venue, depending upon the convenience of the court, the principal residence and location of assets of the decedent. This would then coincide with the principles expressed by the Court of Appeals as long ago as 1892 that, as between two or more counties of this state, "It is a matter of very trifling importance, except upon the mere question of convenience, which of such surrogates' courts shall take the proof as to the due execution of the will, and grant letters testamentary thereon".

The fundamental reasoning in Bolton has never been overruled and the statements made therein are applicable today even though surrogates' courts in 1892 had a much lower status in the judicial scale than they have today. They are no longer an agglomeration of separate courts which then had only very limited jurisdiction. "They" are now one statewide court under article six of the State Constitution which became effective on September 1, 1962 and under the Surrogate's Court Procedure Act enacted in 1966. That one court has full and complete general jurisdiction in law and in equity (SCPA 201, subd. 3). SCPA 103, subd. 10 accordingly defines "court" as "the surrogate's court, including any judge or surrogate assigned, elected or appointed to serve as judge of the court." The court recommends a full reading of the Bolton case, particularly its recognition (still followed by the courts and statutes) that prime importance be given to the "subject matter" and "general" jurisdiction granted to the surrogate of "each" county and its reference to "inhabitants" of the state (p. 73, 31 N.E. 1001).

Based upon the foregoing analysis the court finds that this decedent's domiciliary residence was at Guinea Woods Road in Old Westbury, Nassau County, at the time of her husband's death on May 26, 1975; that it continued unless and until superseded by a new domicile; that unless proof is adduced that she changed it to New York County before her death on February 14, 1977, this motion must be denied. Accordingly, if the movants still wish to press their motion on the question of domicile, they will have the burden to show such change (Matter of Johnson, supra). Their present assertions to the effect that she was incompetent prior to the husband's death are irrelevant to the issue. Neither have they shown sufficient reason to change the place of trial for convenience of witnesses. This matter will appear on the calendar of this court on August 3, 1977 at 9:30 a. m. to ascertain whether movants desire a hearing and tender an offer of proof acceptable to the court.

Since the court issued its decision dated July 21, 1977, counsel for the respondent-movants called attention to certain inadvertent statements in the decision which do not affect the result but which are now herewith corrected. The references in the decision to 196th Street should be corrected to read 561 West 169th Street.

The other item complained of relates to the time when the decedent's mental difficulties allegedly began. Counsel asserts that his investigation shows (and therefore the respondents' contention is) "that the decedent’s mental difficulties began a considerable time prior to the automobile accident and this will undoubtedly become a prime issue at the time of the trial."
Accordingly, the corrections requested by counsel are accepted. It should also be noted that the prior decision dealt only with arguments of counsel and there were no findings of fact. The motion was denied with leave to movants to tender an offer of proof acceptable to the court and the decision stands, with permission to request a hearing if one is desired. The record is now corrected to show that movants made no concessions relating to the automobile accident.
If you are involved in a similar situation, seek for the help of a Nassau Family Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates.

Plaintiff Seeks Reimbursement for Cost of Tuition for Foster Child

March 28, 2015,

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

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

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

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

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

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

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

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

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

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

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

Court Discusses Reasonable Doubt Regarding Evidence

March 27, 2015,

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

The Facts

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

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

Specific Allegations of Statutory or Code Violations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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