Plaintiff Seeks a Divorce on the Grounds of Inhumane Treatment

May 8, 2015,

A New York Family Lawyer said this action seeking a divorce on the ground of cruel and inhuman treatment, and ancillary relief, was commenced on or about June 10, 2003. By order dated December 23, 2003, both parties' applications for temporary custody were denied and an injunction was issued prohibiting either party from taking the children out of the United States. The plaintiff (Wife) was granted omnibus pendente lite financial relief pursuant to an order dated February 24, 2004. The parties entered into a written "parenting-time" stipulation on February 8, 2005. The trial of the action commenced on February 1, 2005. On that date, an inquest was conducted on grounds and the plaintiff was granted a judgment of divorce on the ground of constructive abandonment. Entry of the judgment of divorce was stayed pending the determination, after trial, of ancillary issues.

At the conclusion of the trial, the Court reserved decision, pending receipt of post-trial memoranda and summations which were thereafter served and filed by both plaintiff's counsel, defendant's counsel and the law guardian.

Background
A New York Divorce Lawyer said the parties met in Poland and were married there in a religious ceremony on September 10, 1994, after a civil ceremony conducted in April 1994. There are three infant issue of the marriage, P born December 11, 1996; C born May 25, 1999; and V born September 15, 2000. The plaintiff is 32 and the defendant is 38 years old. The parties and their children are all in good health. The plaintiff earned a bachelor's degree in economics in 1993 and a master of business administration in international economics in 1994 in Poland, prior to the marriage. She first came to the United States after she married the defendant. The defendant has dual citizenship in Poland and the United States.

A Westchester Family Lawyer said at the time of the trial, both parties, their three children, and the defendant's parents were residing in the marital residence in M. The plaintiff resided on the second floor and the defendant and his parents resided on the first floor. Pursuant to the "parenting-time" stipulation dated February 8, 2005, the plaintiff "parents" the children Tuesday through Saturday and the defendant "parents" them Saturday through Tuesday. The stipulation requires that the children sleep in their upstairs bedroom, establishes detailed bedtimes for the children, affords the grandparents five minutes with the children before bedtime to say goodnight, and prohibits the removal of the children's personalty from the marital residence.

Testimony
A Suffolk County Family Lawyer said that the plaintiff testified that the defendant has been physically and emotionally abusive to her throughout the marriage; he physically assaulted her on their honeymoon cruise, when, as they prepared to have lunch, he insisted that they "have sex" and when she resisted, he struck her in the head and various other parts of her body until "he got what he wanted;" he told her repeatedly throughout the marriage that she was "not good enough for him" and was not capable of performing activities pleasing to him.

According to the plaintiff, she was the primary caretaker of the children throughout the marriage. She cared for the children while defendant was frequently absent from the home on work related travel or vacation; she also cleaned the house and cooked meals; in addition to his absences from home for work related reasons, the defendant often took vacations on his own, including trips in the year 2000 to Aspen Colorado, San Diego California, as well as to Costa Rica for a wedding where he stayed for two or three weeks, and a number of trips to Poland to visit family and to check on a house he owned there before their marriage

The plaintiff asserts that the defendant is undermining her relationship with the children. She testified that starting sometime in 2003, her relationship with her son P had deteriorated as a result of the defendant's influence.

The defendant denied plaintiff's allegations that he was a controlling, abusive spouse. The defendant conceded he traveled extensively at times during the marriage.

Custody
Each party seeks sole legal and physical custody of the children. The plaintiff attempted at trial to portray herself as a loving and devoted parent, who has been the primary caretaker, and enjoys a close and constructive relationship with the children. The testimony elicited during the course of the trial did establish that she has historically been the primary care giver for the children. Trial testimony, however, also revealed that she has repeatedly exercised profoundly poor judgment, including shoplifting from a department store at a time when she was accompanied by the children, engaging in a sexual liaison at the marital abode while the children were in the home; leaving the parties' sons in a bathtub without proper supervision; and meeting with a paramour in the presence of the children. The plaintiff contends, however, that she has been the victim of abuse by the defendant throughout the marriage; that her inappropriate behavior is the result of such abuse; that custody of the children should not be awarded to a perpetrator of domestic violence; and that the defendant has been an absent parent, largely uninvolved in the children's upbringing.

For any court considering questions of child custody, the standard by which we are guided is to make every effort to determine what is for the best interest of the child, and what will best promote its welfare and happiness.

Here, the defendant has not historically been the children's primary caretaker. He has, however, historically had child care assistance from his parents, who have resided with the children and cared for them since the children's births. The defendant has not persuaded the Court that he has customarily subjugated his own needs to the best interests of the children. Further, it is clear that throughout the marriage the defendant has exercised total dominion over the family's finances and has not viewed or treated the plaintiff as an equal partner in their marriage. Nevertheless, upon all the facts and circumstances set forth herein above, the Court finds that the best interests of the children will be served by awarding legal custody to the defendant.
Accordingly, the defendant is awarded legal custody of the children. The parties shall, however, have equal "parenting-time" with the children as will be addressed, in detail, herein below.

Parenting Time
Once the plaintiff relocates away from the marital residence, she and the defendant shall have equal parenting time with the children. The children shall spend one week with the plaintiff and one week with the defendant unless the parties agree to an alternative shared parenting schedule. In the event the defendant elects to remain in the marital residence, the children shall attend school in that district and the plaintiff shall obtain housing in a proximity to the marital residence such that the children can be transported to and from school generally in less than 20 minutes. In the event the defendant elects to sell the marital residence prior to the plaintiff's vacatur, each party shall relocate not more than a 20 minute ride from the marital residence, unless the parties agree to both relocate to a location where each shall obtain housing not more than a 20 minute ride from the children's schools. In the event the defendant sells the marital residence after the plaintiff has vacated the marital home and established a residence in compliance with the terms of this decision and order, he shall relocate not more than a 20 minute ride from the children's school, unless the parties agree otherwise and upon such agreement both relocate to premises not more than a 20 minute ride from the children's schools.

Maintenance
Here, the plaintiff was earning $293.00 bi-weekly working part time. In 1999, she was earning $50,000.00 working in the travel industry for American Express. She speaks English and Polish and her resume indicates she has some proficiency in French. She is computer literate and has knowledge of certain computer programs keyed to the travel industry. The Court finds that the plaintiff has the present ability to earn $25,000.00 a year. In view of her work history, her education, and her other skills, the Court finds that she has the ability to resume full time employment earning $50,000.00 a year, with 24 months of the date of this decision and order.
The defendant was earning $90,000.00 in 1999. He earned approximately $ 150,000.00 in 2004. The Court imputes income to the defendant of $125,000.00 a year.

Plaintiff requires maintenance of $2000.00 a month from the time she vacates the marital residence until 24 months from the date of this decision and order. Accordingly, commencing on the date plaintiff vacates the marital residence, the defendant shall pay her maintenance of $2000.00 a month until the death of either party, the plaintiff's remarriage or the expiration of 24 months from the date of this decision and order whichever occurs soonest.

Child Support
The parties' enjoyed a comfortable standard of living during the marriage. They resided in an affluent community and traveled extensively during the marriage. The defendant's ability to earn substantially exceeds the plaintiff's ability to earn. The defendant's parents reside in the marital residence, have the use and enjoyment thereof, and are, or should be making some financial contribution to the carrying charges and maintenance of the premises. In view of all the above and upon consideration of the reasonable needs of the children, the Court finds that it would be just and equitable to apply the statutory percentage to total combined parental income.

Accordingly, upon the plaintiff's vacatur of the marital residence, the defendant shall pay the plaintiff child support of $2256.00 a month. Said award shall be adjusted upon the termination of maintenance to reflect the defendant's gross imputed income of $125,000.00 and the plaintiff's gross imputed income, at the time maintenance is scheduled to terminate, of $50,000.00. At the request of either party, payment shall be through the Nassau County Support Collection Unit.

Child Care Expenses
Pursuant to the provisions of DRL 240(1-b)(c)(4), the Court is to consider child care expenses. The parties do not incur child care expenses at the present time. As the defendant resides with his parents, it is not likely he will incur child care expenses in the future. The plaintiff shall also avail herself of any offer by the defendants' parents to provide child care in the future. In the event the defendant's parents are unable or unwilling to provide child care, the plaintiff shall pay 20% and the defendant shall pay 80% of child care expenses incurred by both parties to enable them to pursue employment and/or education.

Health Insurance
Defendant is directed to maintain medical, dental and hospital insurance coverage for the issue of the marriage commensurate with the coverage in effect as of December 1, 2004. He shall provide such coverage for the plaintiff until entry of a judgment of divorce. In addition, the defendant shall pay 80% and plaintiff shall pay 20% of all un-reimbursed and/or non-covered necessary medical, dental, orthodontic, optical and prescription expenses incurred on behalf of the issue of the marriage, including medically necessary psychological expenses. The plaintiff shall pay her own uncovered expenses.

Life Insurance
The defendant is directed to maintain life insurance coverage in the sum of $500,000.00, naming the defendant as trustee for the benefit of the children until the youngest is emancipated.
Divorce cases entail tiresome and complicated issues. It will involve much time for preparation testimonies of qualified witness to give opinion to which the court may base a sound judgment.
If you are contemplating of going in this kind of proceeding, the Stephen Bilkis & Associates and its Nassau County Family Attorneys can offer you their expertise in dealing with these cases. Also, our Nassau County Order of Protection Lawyers will work side by side to ascertain that protective orders are sought in situations where a party is a victim of violence by the other spouse.

Petitioner Asserts Right to Counsel via Legal Aid

May 7, 2015,

A New York Family Lawyer said that, the basis of this application, made by the Legal Aid Society of Nassau County and the attorney in charge of the Legal Aid Society of Nassau County, is the refusal by the Judge of the District Court of Nassau County, to permit the petitioner to continue to represent defendant on a pending charge of violating Section 240.20(5) and 240.20(6) of the Penal Law.

On June 24, 1971 defendant appeared pro se in the Arraignment Part of the District Court in response to the charge supra. At that time it is alleged that defendant indicated he could not afford an attorney and the matter was adjourned to June 20, 1971 and July 29, 1971 when defendant was arraigned. At that time defendant was represented by the Legal Aid Society to whom the case had been referred and who accepted defendant as a client.

A New York Divorce Lawyer said that it is alleged that petitioner represented defendant at conferences held on September 16, 1971 and October 4, 1971 before a Judge when the matter was marked ready for trial. At that time the Judge refused to permit the petitioner to continue to represent defendant because to quote from the Judge’s affirmation, dated October 14, 1971: 'It is manifest that the responsibility to make full, honest and clear disclosures rests upon those applying for legal assistance and that failure or refusal to do so, as was the case with defendant, is of such a grave nature that the Court can only resolve the issue by denying the application for assignment of free counsel until such time as defendant demonstrates that he is entitled thereto.'

A Queens Family Lawyer said in the affidavit submitted by defendant in support of his application to be assigned free counsel, dated July 20, 1971, defendant states that he is 18 years of age, single, and resides in Nassau County; that his father is employed earning $720 per month net; his parents own a home valued at $25,000 on which there is a mortgage (amount not set forth); the parents own a 1969 car which is financed. The application indicates that defendant is a student with a notation that as of October 12, 1971 he is no longer a student, but unemployed. He sets forth expenses of $1,069 a month, which obviously are attributable to the parents since they include rent or mortgage payment of $191, $200 per month for food, utilities, home insurance, etc. There is a statement at the end of the affidavit, handwritten, 'Mother states they are so far in debt they cannot afford (private) counsel for (defendant).'

A Nassau Family Lawyer said that, in the opposing affirmation submitted by the Judge, he states that upon ascertaining that he is unemancipated, he determined that inquiry should be made into the true financial circumstances of those responsible for defendant namely his parents. He adjourned the matter to October 12, 1971 so as to permit the defendant to return to court with a copy of his father's income tax return for 1970 and be accompanied by his parents. On October 13, 1971 the defendant returned without his parents and without the tax information. (Petitioner alleges that defendant stated his mother could not find the return). Since the defendant provided no proof of parental income, at that point the Court adjourned the matter to October 21, 1971 and directed the defendant to obtain private counsel.

The Court finds that the petitioner has failed to join a Necessary aggrieved party in this proceeding, namely, defendant, and the petition is therefore defective. Presumably the petitioner believes itself to be an aggrieved party. However, this does not eliminate the necessity of joining the defendant.

Petitioner proceeds under Section 7802(c) of the CPLR, entitled 'Prohibition in favor of another', which states: 'Where the proceeding is brought to restrain a body or officer from proceeding without or in excess of jurisdiction in favor of another, the latter shall be joined as a party.

However, the Court will overlook the defect and in the interests of justice make its determination on the merits. Turning to the first consideration, namely, whether the Judge possesses the requisite authority to make the determination under review, County Law, Section 722, provides in part: 'Plan for representation. 'The board of supervisors of each county and the governing body of the city in which a county is wholly contained shall place in operation throughout the county by December first, nineteen hundred sixty-five a plan for providing counsel to persons charged with a crime, who are financially unable to obtain counsel. Each plan shall also provide for investigative, expert and other services necessary for an adequate defense. The plan shall conform to one of the following: '1. Representation by a public defender appointed pursuant to county law article eighteen-A. '2. Representation by counsel furnished by a private legal aid bureau or society designated by the county or city, organized and operating to give legal assistance and representation to persons charged with a crime within the city or county who are financially unable to obtain counsel. 'Any judge, justice or magistrate assigning counsel pursuant to sections one hundred eighty-eight, three hundred eight and six hundred ninety-nine of the code of criminal procedure, or in assigning counsel to a defendant when a hearing has been ordered in a proceeding upon a motion for a writ of error coram nobis, shall assign counsel furnished in accordance with a plan conforming to the requirements of this section.'

Four different plans are available for a county under County Law 18--B. Nassau County adopted a plan of representation utilizing the Legal Aid Society rather than a public defender, and thereafter contracted with the Legal Aid Society of Nassau County to represent indigents charged with crime. N.B.--Neither the petitioner nor respondent has supplied the Court with a copy of the contract between the County and Legal Aid Society. This Court, therefore, is unable to consider any of the terms of this contract and their effect, if any, on this proceeding.

While Article 18--A of the County Law enunciates the duty of a public defender, there is no similar section with respect to the Legal Aid Society. Inasmuch as Nassau County is given a choice of providing representation for indigents through a public defender or the Legal Aid Society (County Law Section 722(1) and (2), supra, it is only reasonable to conclude that since the underlying purpose is identical, the duties of either selection will be the same. The cost for either is a County charge.

Section 722--d, 'Duration of Assignment', of the County Law provides: 'whenever it appears that the defendant is financially able to obtain counselor to make partial payment for the representation or other services, counsel may report this fact to the court and the court May terminate the assignment of counsel or authorize payment, as the interests of justice may dictate, to the public defender, Private legal aid bureau or society, private attorney, or otherwise.
The statute (722--d) makes it crystal clear that the Court has the authority to terminate free legal aid when it determines the need for same has passed. The Attorney General of this State, in an opinion rendered by him on April 21, 1966, at pages 84 and 85, states that in a county where a public defender has been selected as the mode for representation of indigents, 'the finality and duration of such determination is a judicial function.'

There is no dispute that in the criminal proceeding, which is the basis of the proceeding herein, the Court may properly exercise jurisdiction over the assignment of counsel, pursuant to Article 18--B of the County Law and Section 35 of the Judiciary Law. This jurisdiction is necessarily continuing in nature and it would be illogical to hold that whereas the Court is given the initial responsibility to make inquiry to determine need for assigned counsel, it thereafter is without the authority to remove counsel for just cause, including a determination that the defendant has the financial means to provide counsel of his own selection. The Court finds Judge has the power and duty to explore into defendant's eligibility for free legal aid.

The Court, having determined that the Judge acted within the scope of his judicial authority, now turns its attention to whether the determination was arbitrary, capricious, or an abuse of discretion. When the defendant failed to respond to the Court's directive, the Court had no opportunity to probe into the financial background of the defendant's family and those elements of inquiry which the Federal Court, set down as possible avenues of inquiry to determine indigence.

The assignment of free legal counsel is discretionary with the Court and when a defendant willfully refuses to comply and cooperate with the Judge who is attempting to exercise this discretion in a just and fair manner, said defendant certainly brings no merit with him in this review proceeding.

The Court determines that Judge was vested with the inherent judicial power, insulated by the County Law and Judiciary Law, to make the determination under review and that he made a reasonable determination. The Court determines that the refusal to approve defendant's application for free legal counsel was neither arbitrary, capricious nor an abuse of the Court's discretion. The defendant approached the Court apparently with an attitude that free legal counsel was his for the asking as a matter of right and this is a misinterpretation of the statute. This matter has been set down for trial on October 21, 1971.
A short form judgment is attached herewith (omitted from published opinion). The Court directs that the defendant be served with a copy of the judgment entered hereon and be given reasonable time in the discretion of the District Court within which to obtain counsel and a new trial date set therefor.

Are you facing a similar case scenario? Seek the help of a Nassau Order of Protection Attorney and Nassau Family Attorney at Stephen Bilkis and Associates.

Petition Brings Case Requesting Relief Pursuant to Real Property Laws

May 6, 2015,

A New York Family Lawyer said that this is a hybrid proceeding and action for damages by the petitioner as general partner of a Family Limited Partnership "the petitioner" for stated relief pursuant to Real Property Tax Law Article 7 and/or a writ of mandamus pursuant to CPLR Article 78 compelling the respondent Nassau County Board of Assessors and the Nassau County Department of Assessment "the respondents" to: (1) implement and abide by a decision rendered after a small claims assessment review hearing, dated November 27, 2006 which, inter alia, reduced the petitioner's assessment for the 2006/2007 tax years and recognized the petitioner's standing to maintain a SCAR proceeding within the meaning of Real Property Tax Law § 730; (2) further compelling the respondents to grant the petitioner a partial STAR exemption (RPTL § 425), and/or in effect, for relief setting aside the respondents' January, 2007 denial of the petitioner's application for a partial STAR exemption; and (3) for further relief awarding the petitioner punitive damages in the amount of $1 million is granted in part and denied in part as set forth below.

The petitioner as general partner of the Family Limited Partnership has commenced the within hybrid action and proceeding, styled as one pursuant to CPLR Article 78 and/ or article 7, et., seq., of the Real Property Tax Law (A. Pet., ¶ 18), for a writ of mandamus compelling the respondent Nassau County Board of Assessors and the Nassau County Department of Assessment [ collectively "the respondents"] to implement and abide by a decision rendered after a small claims assessment review hearing, dated November 11, 2006 which, inter alia, (i) recognized the petitioner-partnership's standing and eligibility to maintain a SCAR proceeding within the meaning of Real Property Tax Law § 730; and (ii) then reduced the petitioner's assessment for the 2006/2007 tax years.

A New York Divorce Lawyer said that the respondents have currently declined to implement or enforce the hearing officer's SCAR decision on the theory that the JHO lacked jurisdiction over the petition, since a family limited partnership allegedly cannot qualify as an "owner-occupier" within the meaning of Real Property Tax Law § 730.

A Nassau County Family Lawyer said that the respondents have also determined — for the same reason — that petitioner's residence is ineligible for the so-called partial "STAR" school exemption, i.e., that a family limited partnership cannot qualify as an owner-occupant pursuant to the applicable provision of Real Property Tax Law § 425.
Notably, prior to transferring the subject residence to the family limited partnership, the petitioner had received the STAR exemption in connection with the property. It is undisputed that the respondents denied the petitioner's subsequent application for STAR relief by undated letter received by the respondents in January of 2007. Thereafter, by notice of petition dated April, 2007, the petitioner commenced the within hybrid proceeding and action, styled as one pursuant to CPLR Article 78 and/or Article 7 of the Real Property Tax Law.

A Staten Island Family Lawyer said that among other things, the petitioner asserts that: (1) the respondents have arbitrarily denied him partial STAR relief and erroneously refused to enforce and recognize the SCAR hearing decision; and (2) that sections 425 and 730 of the Real Property Tax Law are unconstitutional to the extent that SCAR and STAR relief has been denied to residential properties like his, held in "bifurcate" and/or "beneficial" form through "family limited partnerships".

The petitioner further claims entitlement to an award of punitive damages in the amount of $1 million based upon allegedly malicious and retaliatory conduct supposedly perpetrated by the respondents in connection with the assessment of his property. The petition is granted to the extent indicated below. The record establishes that, as to the SCAR issue, the JHO had before him — as a factually-based question — whether the subject property was being utilized "exclusively for residential purposes" pursuant to Real Property Tax Law § 730[1][b] and permissibly concluded that it was. There is nothing in the record which indicates that the subject property has been devoted to anything other than residential use. Indeed, the record supports the conclusion that the partnership was created solely for tax and estate planning purposes; that it does not engage in any commercial business activities; and that it serves and exists solely as the Smiley family's personal and primary residence.

The Court similarly rejects the assertion that, under the circumstances presented here, a family limited partnership cannot, as a matter of law, "owner-occupy" a residential property for the purposes of qualifying for expedited, SCAR relief. It bears noting that Real Property Tax Law § 730 does not identify or limit the manner in which property devoted "exclusively to residential purposes" must be owned or held as a prerequisite to the availability of SCAR relief.

Rather, Real Property Tax Law § 730[1] provides that, "[a]n owner of real property claiming to be aggrieved by an assessment on real property on the ground that such assessment is unequal or excessive may file a petition for review pursuant to this article. Significantly, Real Property Law § 730[9] expressly authorizes the filing of SCAR petitions in analogous circumstances where applicants beneficially own otherwise qualifying, residential property, e.g., where such property is held in trust for the "benefit of a person or persons."

Upon the particular facts presented here, a construction of the statute's neutral language which excludes residential property merely because it is titled in family limited partnerships, would be inconsistent with the underlying objectives of the SCAR statute, i.e., to afford homeowners "speedy and inexpensive relief through a simplified review procedure".

It is settled that when a proposed "construction would thwart the settled purposes of the statute literal and narrow interpretations should be avoided".

Lastly, there is no question that pursuant to the statutory SCAR scheme, the respondents are not afforded the discretion to simply ignore or decline to enforce a legally constituted ruling issued by a judicial hearing officer. Since it has been demonstrated that there exists a clear legal right to the relief sought, mandamus will lie to compel the respondents to recognize and enforce the hearing officer's decision. With respect to the STAR exemption, the petition asserts, inter alia, that family limited partnerships fit within the existing definitional language of the statute and that qualifying them for STAR benefits is consistent with the legislative objectives underlying Real Property Tax Law § 425. The Court agrees.

Initially, while the respondents contend that the claims advanced herein are exclusively redress able in a proceeding pursuant to RPTL Article 7, the Court notes that: (1) the amended petition is styled as a proceeding brought alternatively under both CPLR Article 78 and RPTL Article 7 (A. Pet.,1118); and (2) the respondents have not argued — much less demonstrated — that the proceeding as presently constituted is time-barred by the 30-day limitations period applicable to Article 7 proceedings.

Assuming that the respondents are relying on a limitations-based theory by advancing this claim, it is settled that the party relying on a statute of limitations defense bears "the initial burden of establishing prima facie that the time in which to sue has expired" which entails proof — not offered here — demonstrating "when the petitioner's causes of action accrued".

Alternatively, and to the extent the respondents are simply asserting that the procedural vehicle selected by the petitioner is technically incorrect, the Court may convert the instant matter to the proper procedural form. Turning then, to the relevant statutory language, the Court notes that RPTL § 425[3][a] provides in part, that in order to "qualify for exemption pursuant to this section, the property must be a one, two or three family residence, a farm dwelling or residential property held in condominium or cooperative form of ownership". The property must, additionally serve as "the primary residence of one or more of the owners" thereof. The petitioner's submissions have established compliance with the foregoing statutory requisites.

It is settled that the STAR program was "intended to provide a property tax exemption to all primary residences Legislative Memorandum, New York State Assembly. Moreover, the "interpretation of exemption statutes `should not be so narrow and literal as to defeat their settled purpose.

With respect to "one, two or three family residence family," the statute does not prescribe or list any mandatory form or method by which title to a "family residence" must be held. Nor does the statute make reference to or mandate individual ownership by joint tenants, tenants in common or tenants by the entireties, but rather, emphasizes the residential nature of the property and number of families residing therein.

Although the term "owner" is undefined, the legislature has seen fit to provide STAR exemptions to certain applicants who cannot demonstrate formal, legal ownership of otherwise qualifying, residential property, but who — in realty — are clearly the effective or beneficial owner-occupants of the properties, namely, trust beneficiaries (RPTL § 425[3][c]); "farm dwellings" held in partnership or corporate form (RPTL § 425[3][d]); and cooperative shareholders.
Accordingly, the legislature has plainly concluded that authorizing exemptions for parties whose primary residences are formally titled in other entities, is entirely consistent with the underlying objectives of the STAR program, i.e., to "provide a property tax exemption to all primary residences."

Here, as noted previously, the record supports the conclusion that the subject property serves as the primary residence of the individuals who are members of the family partnership; that pursuant to the partnership agreement, the subject residence serves as the partnership's principal place of business; that the partnership conducts no business activities, produces no products and provides no services, and that the partners (the Smileys) are personally responsible for paying the assessed taxes.

The narrow assertion that a family limited partnership can never owner-occupy a residence within meaning of RPTL § 425 even when all "partners" are primary residents of the subject property exalts form over substance and thereby serves to "thwart the settled purposes of the statute".

The fact that legislative efforts unsuccessful to date may have been made to expressly include family limited partnerships within the explicit scope of the statute, does not preclude the granting of relief based upon the existing and relevant language of the current legislation.
In short, the constellation of relevant factors presented supports the availability of a STAR exemption in connection with the petitioner's otherwise qualifying, family limited partnership. Since the respondents' January, 2007 determination denying partial STAR relief lacks rational support in the record, it should be vacated and the exemption granted to the extent that petitioner otherwise qualifies for its benefits.

In light of the Court's determination, it is unnecessary to reach the petitioners’ constitutional assertions, as to which, it appears, the "requisite statutory notification" to the New York State Attorney General has not been provided. However, the cause of action for $1 million in punitive damages based on alleged retaliatory conduct, is dismissed.

The Court agrees that the assertions made in support of this claim do not raise a viable claim as to the respondents' alleged retaliatory intent. In any event, it is settled that "that the State and its political subdivisions are not subject to punitive damages".

The Court has considered the parties' remaining contentions and concludes that they are lacking in merit.

Accordingly, it is, ordered that the branch of the petition which is for a writ of mandamus compelling the respondents to implement and abide by a decision rendered after a small claims assessment review hearing, dated November 27, 2006, is granted, and it is further, ordered that the branch of the petition which is for, in effect, review and annulment of the respondents' January, 2007 determination denying the petitioner's application for a STAR exemption is granted; the determination is annulled and it is declared that the petitioner is entitled to the partial exemption sought; and it is further, ordered that the branch of the petition which is to recover punitive damages, is dismissed.

If you are involved in a similar case, seek the legal assistance of a Nassau Family Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates.

Court Discusses Child's Eligibility for State Assistance Programs

May 5, 2015,

A New York Family Lawyer said that under the Federal public assistance program called Aid to Families with Dependent Children (AFDC), family income is considered in determining a child's eligibility for relief. All of a natural father's income is typically deemed available to his child, but the situation is more complicated where stepfathers are found. The Federal Regulations allow consideration of all of the stepfather's income in estimating the child's eligibility only if the applicable State law establishes a general obligation on all stepfathers to support their stepchildren, but not where the stepfather is liable to support only a stepchild likely to be a public charge.

A New York Divorce Lawyer said that in this decision we find, after reconciling a confusing statutory scheme, that in New York there is no general obligation of stepfathers to support their stepchildren, and that these support obligations only occur where the child is otherwise to become a public charge, or under special circumstances of agreement or estoppel. Accordingly, the stepfather's entire income is not automatically figured to the stepchild, but as explained below, on familiar social services principles, only so much of it as is actually devoted to the child.

A Westchester Family Lawyer said that on July 1971, LS and GS were married, each for the second time. Mrs. LS had two children by her first marriage which was ended by divorce, and because her ex-husband, Mr. K, failed to support the family, she and the children received AFDC public assistance from the Nassau County Department of Social Services. Mrs. GS has three children by his former marriage, who live with their natural mother, and pays $238 per month to support them, by court order, plus paying medical, dental and life insurance expenses. He has not adopted the two K stepchildren. Earning a net salary of $190 per week, Mrs. GS and his wife, after his support payments are deducted, are self-sufficient and have not applied for public assistance in their own behalf.

A Suffolk County Family Lawyer said that after a protracted delay in the local agency's termination of assistance to the two stepchildren, 1 in July 1972, their AFDC assistance was discontinued. The agency budgeted Mrs. GS's entire income towards the needs of the stepchildren, as well as those attributed to himself and Mrs. LS, recognized a $165 per month shelter need instead of the $294 mortgage expense actually incurred, and found a budgetary surplus of $68.10.

By fair hearing decision dated September 29, 1972, the State affirmed that determination. In so doing, it specifically relied upon the obligation of stepparents in New York to support stepchildren 'who are recipients of or in need of public assistance' and 18 NYCRR § 352.31, which provides that all available income of a spouse, if in the home, shall be applied against the needs of the family. This Article 78 proceeding followed, basically asserting that the State determination, and regulation as applied, is contrary to Federal requirements.

AFDC in New York is a co-operative venture. Its origin is the Federal Social Security Act, 42 U.S.C. § 601 et seq. under which millions of dollars in Federal aid are dispensed to New York which in return is required to conform its State plan to Federal requirements.
In general, Federal requirements define the class of 'dependent children' entitled to receive AFDC. That definition is binding upon the States participating in the AFDC program.

Congress has defined a dependent child entitled to AFDC, in pertinent part, as a: 'needy child . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent . . .'. 42 U.S.C. § 606(a).
45 CFR § 233.90(a) provides in pertinent part: 'A State plan must provide that the determination whether a child has been deprived of parental support or care will be made only in relation to the child's Stepparent who is ceremonially married to the child's natural or adoptive parent and Is legally obligated to support the child under State law of general applicability which requires stepparents to support stepchildren to the same extent that natural or adoptive parents are required to support their children. The income only of the parent described above will be considered available for children in the household in absence of proof of actual contributions'.

In Lewis v. Martin, Supra, the United States Supreme Court upheld the predecessor to this regulation which prohibited assuming income being available from a 'substitute parent', holding that only stepparents bound to support by State law are included in the term 'parent'.

In Sterrett v. Gaither, the Supreme Court affirmed a unanimous three judge court ruling which restrained enforcement of Indiana's public assistance statute that counted nonadoptive stepfathe income towards AFDC as being not a law of 'general applicability' and hence in conflict with Federal regulations. Indiana's law required stepparents' income to be considered available to support a stepchild where the child would otherwise be eligible for AFDC.

The United States Department of Health, Education and Welfare (HEW), the Federal agency delegated the responsibility of enforcing the Social Security Act, has precisely interpreted the meaning of a law of 'general applicability’: 'A duty of general applicability (is one) which (a stepparent) could be compelled by court order to fulfill . . . regardless of whether the children would otherwise receive AFDC payments'.

The stepparent support law in New York is statutory in origin. There was no such common law obligation.

Under New York statutory law, the support liability of a stepparent is imposed only where the stepchild is receiving or in danger of receiving public assistance. The obligation is set forth principally in Family Court Act § 415, entitled 'Duties to support recipient of public assistance or welfare and patients in institutions in the department of mental hygiene', as follows: 'The . . . parent of a recipient of public assistance or care or of a person liable to become in need thereof . . . if of sufficient ability, is responsible for the support of such person . . . Step-parents shall in like manner be responsible for the support of minor children'.

This provision is reiterated in substantially identical form in Social Services Law § 101(1). Sections 413 and 414 of the Family Court Act impose a general duty of minor child support upon the natural mother and father, without regard to the child's resources, but make no mention of a comparable stepparent support responsibility. The Domestic Relations Law and matrimonial actions arising under it generally rely upon and incorporate the support obligations contained in the Family Court Act and Social Services Law.

The State, in arguing that a 'general' support obligation exists, cites, however, Article 3--A of the Domestic Relations Law. It is true that a 'child' eligible for support for the purpose of Article 3--A is defined to include 'a stepchild’.

However, Article 3--A does not create a general obligation. Entitled 'Uniform Support of Dependents Law' (USDL), it is a vehicle for the conduct of essentially an enforcement support proceeding where the petitioner seeking support lives outside the county or state where the respondent obligor resides. Proceedings under Article 3--A are maintainable only between residents of different counties, or reciprocating states with similar USDL statutes. Domestic Relations Law § 35. 3-A They avoid the inconvenience of the party seeking support having to go to the place where the obligor resides, and allow for a bifurcated hearing, first in one jurisdiction, as to the petitioner's affirmative proof, then in another jurisdiction as to respondent's reply. Where a dispute arising under Article 3--A requires application of the substantive support law of New York (either between only New York residents or involving New York dependents), and not that of a foreign jurisdiction, the reported cases look to the Family Court Act and Social Services Law for imposition of substantive support obligations.

Therefore, Article 3--A would have no application to the present support situation in the home courts where both stepfather and stepchildren reside in Nassau County. Moreover, despite its broad language, it does not rise above the limited application of the Article and create an independent obligation apart from the governing substantive support statutes. Were it otherwise the existence of support obligations only referred to in Article 3--A, such as the support duty of a grandparent or indeed stepparent aside from the indigency of their stepchildren, would depend wholly on the accident of residence. Some dependents without a common county residence with their claimed supporting counterparts would be entitled to support, those with common residence would not. Such a bizarre statutory result is simply not logical or fair. And, if it were the law in New York, in any event, that would certainly not be a support obligation of 'general applicability', under Federal standards, being as it would be, then, fragmented and determined on the basis of intrastate residence. To the extent Article 3--A refers to broader support obligation than contained in the Family Court Act, it must be for purposes of including and accommodating foreign support law, when it is to be applied in New York courts.

The courts have uniformly made stepparent support liability contingent upon the non-adopted stepchild's status as an actual or potential public charge.

Section 125 of the Public Welfare Law (predecessor to Social Services Law § 101) does not impose an absolute duty on a stepfather to support his minor stepchild. It only requires him to furnish such support if he is of sufficient ability to do so, and the child is or is liable to become a public charge.

Virtually every reported case where the child's resources were disclosed specifies that the stepparent liability was invoked only if the infant were so destitute.

The State does not cite, nor has the Court been able to find, a single case under contemporary support statutes where a stepparent was required to support a non-indigent stepchild.

A general obligation of support imposed upon a natural or adoptive father does not turn on the child's dependence upon public assistance, and, indeed, exists regardless of the child's own resources and those of his mother. Moreover, unlike the stepparent liability, the natural father must support his child even after the death or divorce of the natural mother.
'The provision for child support is certainly on a broader basis and has deeper roots than the provision for support of step-children.'

The State's contention that New York's stepparent support law, acknowledged as limited to 'minor children who are the recipients of public assistance' is 'commensurate with the obligation imposed upon natural and adoptive parents' is simply not borne out by the cases. The Federal requirement is not satisfied if only stepchildren receiving public assistance have equal support rights with each other. Rather, All stepchildren must be the beneficiaries of a general obligation of support. And, the prior cases brought in New York where the question of 'general applicability' of stepparent support obligation has been raised have not decided it upon the merits. They have merely deferred temporary or summary judgment rulings in favor of trial determinations. Accordingly, there has as yet been no decisive ruling on the issue presented here.

We believe that New York's statutory stepfather support obligation is to be imposed only upon stepfathers of children who are receiving public assistance or in danger of so doing. It is not an obligation 'generally applicable' to all stepchildren.

This is not to say that under appropriate circumstances a stepfather could not be liable to support a non-public charging child. There can be specific courses of dealing, marital inducement, express or implied agreement, equitable estoppel, or fundamental fairness which can, in a given family, result in individual support commitment irrespective of statute. But, this too is far from a general obligation affecting all stepchildren.

Under the present statutory circumstances, the HEW regulation does not prevent the State in computing potential assistance from taking into account so much of the stepparent's income as is actually spent on the children. It merely prohibits the automatic assumption that his entire income is available and applied to their support. The apparent reasoning underlying 45 CFR 233.90(a) is that a duty of automatic support only as to welfare stepchildren places upon them an added burden inhibiting remarriage of their natural custodial parent, not equitably imposed upon the rest of society's stepchildren. To the extent the stepparent's income is deemed applied towards the dependent stepchildren, it violates the regulation designed to insure equal societal treatment of AFDC children.

Since New York's stepparent support law is not 'generally applicable', stepfather Slochowsky's entire income was improperly applied automatically towards his stepchildren's needs. It is doubtless properly deemed applied to the wife's needs, and is sufficient to meet the needs of, and warrants denial of assistance to Mr. and Mrs. LS. But, under governing Federal standards, it is not all to be included automatically in the children's budgetary computation.

The petition is therefore granted, respondent's application of 18 NYCRR § 352.31 here is declared inconsistent with 45 CFR § 233.90(a), his determination after fair hearing affirming the local agency's discontinuance of AFDC to petitioner's children is annulled, retroactive to July 1, 1972, and respondent is enjoined from attributing Mrs. GS's income towards the needs of his stepchildren, except insofar as it is actually so applied.

Stephen Bilkis and Associates works hand in hand with the best Nassau County Family Lawyers in handling cases, such as above, and other similar cases. Also for special cases such as, child custody and similar cases, our Nassau County Child Custody Attorneys will handle the same; visit our legal offices located around New York Metropolitan for free legal consultation.

Court Discusses Outcome of Juvenile Hearing

May 4, 2015,

A New York Family Lawyer said that the respondent has moved to vacate this Court's order dated February 21, 2007 which, upon his consent, extends his placement with the New York State Office of Children and Family Services ("OCFS") as a juvenile delinquent for twelve months and directs that OCFS continue respondent's present placement with L & W, an authorized agency within the meaning of Social Services Law §371 (10).

In support of the motion to vacate the Court's order extending his placement with OCFS for L & W, respondent contends that: (i) the Family Court was without jurisdiction to extend placement; (ii) the proceedings were defective in that the Court did not have the authority to reconvert the proceeding from a Person in Need of Supervision ("PINS") proceeding to a juvenile delinquency proceeding; and (iii) even assuming that the Court had jurisdiction to extend placement with OCFS that placement could not be extended beyond his 18th birthday without his consent.
By petition filed pursuant to Family Court Act §310.1 on September 14, 2004, respondent was alleged to have committed acts which, were he an adult, would constitute the crimes of Criminal Mischief in the Fourth Degree and Menacing in the Third Degree. Respondent's initial appearance upon the juvenile delinquency petition occurred on September 27, 2004 and on that same date respondent entered an admission to the count charging him with committing an act which would constitute the crime of Criminal Mischief in the Fourth Degree. Upon respondent's admission to that count of the petition the Court directed the Department of Probation to conduct an investigation into respondent's circumstances and prepare a written report to the Court, and the Court "temporarily" converted the juvenile delinquency petition to a PINS petition upon the consents of the Presentment Agency and respondent. Respondent was then remanded to the custody of the New York City Administration for Children's Services ("ACS") as a PINS and the Commissioner of ACS was directed to arrange for a diagnostic evaluation of the respondent.
A PINS dispositional hearing pursuant to article 7 was commenced before the Court on November 5, 2004. The written report of the Department of Probation was received into evidence along with a report from L & W, the authorized agency at which respondent had been placed by ACS under the Court's remand order. However, because the L & W caseworker directly responsible for respondent's case was unavailable and because the diagnostic evaluation of the respondent had not been completed, the hearing was continued until December 10, 2004. When the hearing continued on December 10, 2004, the L & W caseworker appeared and the caseworker advised the Court that the agency planned to refer the respondent for appropriate services. Respondent was then released to the custody of his mother and the Department of Probation was requested to consider the service plan proposed by L & W and to update its report in light of that plan if appropriate.

A New York Divorce Lawyer said that the dispositional hearing continued on January 20, 2005 and the Department of Probation submitted an updated report. At that time, respondent's mother informed the Court that respondent had disobeyed the curfew she had set for him and that he had come home at whatever time he pleased, often in the early hours of the morning after having stayed out all night. Given that respondent appeared to be beyond parental control, the Court vacated its prior order substituting a PINS petition for the juvenile delinquency petition and respondent was ordered detained by the Department of Juvenile Justice pending further proceedings upon the reinstated juvenile delinquency petition on February 7, 2005. The Family Court Mental Health Services Clinic was directed to conduct a psychological assessment of the respondent and the Department of Probation and ACS were directed to explore possible placement resources for the respondent.

A Manhattan Family Lawyer said at the dispositional hearing recommenced on February 7, 2005 and the reports by the Mental Health Services Clinic, ACS and the Department of Probation were introduced into evidence. Based upon all of the evidence adduced at the hearing the Court concluded that the respondent was a person in need of supervision, treatment or confinement and he was adjudicated to be a juvenile delinquent. Thereafter, upon the Court's own motion and with the consent of the Law Guardianship, a finding that respondent is a PINS was substituted for a finding that he was a juvenile delinquent and based upon the evidence adduced at the dispositional hearing respondent was placed in the custody of the Administration for Children's Services with a further direction that he be placed with L & W for 12 months. The order placing the respondent with ACS was based upon the Court's determination that he required supervision and placement, that continuation of respondent in his own home would not be in his best interests, that reasonable efforts had been made to maintain respondent in the community by substituting a PINS petition for the juvenile delinquency petition and by ultimately releasing him to his parent with the intention of providing him with appropriate community based services. In addition, the Court also considered the needs and best interests of the respondent as well as the need to protect the community.

A New York City Family Lawyer said that the petition seeking to extend respondent's placement and to review the ACS/L & W permanency plan was filed on December 19, 2005 by ACS pursuant to Family Court Act §756-a. In support of the petition to extend placement, ACS alleged that respondent has made progress in the therapeutic program at L & W, that he attends school regularly and is participating in psychotherapy. While the agency's goal was to eventually reunite respondent with his mother, the agency was unable to presently effect that goal because the mother lacked permanent housing. Thus, the agency's immediate plan was to implement family therapy and to assist respondent's mother in obtaining suitable permanent housing.

During the pendency of the proceedings upon the extension of placement petition the Court was advised that respondent had absconded from the L & W campus and the Court issued a warrant for him, and by order dated January 25, 2006, respondent's placement was temporarily extended pending his appearance before the Court upon the warrant. Respondent was returned upon the warrant on January 30, 2006, the warrant was vacated and respondent's placement was then temporarily extended until February 16, 2006 pending further proceedings upon the petition. On February 16, 2006 a caseworker from L & W advised the Court that respondent had again absconded from L & W RTC and another warrant was issued for him.

When respondent next appeared before the Court on April 12, 2006 the parties consented to the entry of an order extending placement with ACS for one year, effective February 6, 2006, based upon the record before the Court which strongly indicated that respondent required continued supervision and treatment and that a return to his parent would not be in his best interests at this time. In addition, the Court determined that the agency's permanency plan (concurrent plans for a return to parent or a transition to independent living) for the respondent was reasonable and that the agency had exercised reasonable efforts to effectuate that plan.

On June 28, 2006 the L & W caseworker appeared before the Court to report that the respondent had again absconded from the facility and another warrant was issued for the respondent. Respondent voluntarily appeared upon the warrant on August 30, 2006, the warrant was vacated, and another judge directed that he return to placement with the agency. This Court received an updated status report from L & W on September 20, 2006 and the order of placement continued. On November 17, 2006 the agency caseworker again appeared to request a warrant for the respondent who had again absconded from the facility. The warrant was issued and respondent was not returned upon the warrant until February 8, 2007. At that time, the Court sua sponte vacated its February 2, 2005 order which substituted a PINS finding for an order finding respondent to be a juvenile delinquent, and he was remanded to Elmhurst Hospital Medical Center for a psychological evaluation in accordance with Family Court Act §251, and the proceedings were continued until February 21, 2007.

On February 21, 2007, the Assistant Corporation Counsel, respondent, his mother and the Law Guardian appeared before the Court. At that time, and upon the consent of the parties, an order was entered pursuant to Family Court Act §353.3 which placed respondent in the custody of the Office of Children and Family Services for twelve months as a juvenile delinquent, with the specific directive that he be placed at L & W by OCFS. As part of the placement order, the Court directed that respondent cooperate with any drug treatment program offered by L & W and that OCFS and L & W provide respondent with all necessary medical care, as required by statute.
Thereafter, respondent filed this motion for an order vacating the February 8, 2007 order substituting a juvenile delinquency finding for a PINS finding and the subsequent order placing respondent with OCFS for L & W.

Respondent's argument that the Court lacked the authority to enter the February 8, 2007 order which resubstituted a juvenile delinquency finding for a PINS finding is without merit.
Article 3 of the Family Court Act clearly authorized the entry of the order in question as well as the subsequent placement of respondent with OCFS for L & W.

The Court's authority to enter the various orders under review in this case is derived from two complimentary sections of article 3 of the statute. The PINS substitution section of the juvenile delinquency statute, Family Court Act §311.4, reads as follows:

1. At any time in the proceedings the court, upon motion of a respondent or on its own motion, may, with the consent of the presentment agency and with the consent of the respondent, substitute a petition alleging that the respondent is in need of supervision for a petition alleging that the respondent is a juvenile delinquent.

2. At the conclusion of the dispositional hearing the court, upon motion of the respondent or its own motion, may in its discretion and with the consent of the respondent, substitute a finding that the respondent is a person in need of supervision for a finding that the respondent is a juvenile delinquent.

Family Court Act §311.4 (1) authorizes the court to substitute a petition alleging that the respondent is a person in need of supervision for a petition alleging that he or she is a juvenile delinquent. Such a substitution may be made at any stage of a juvenile delinquency petition upon the consent of both the Presentment Agency and the respondent. The substitution of a PINS petition for a juvenile delinquency petition allows the respondent to obtain "certain advantages, including the preclusion of placement in a secure facility and the absence of a finding that a crime was committed". Family Court Act §311.4 (2), on the other hand, authorizes the court to substitute a finding that a respondent is a person in need of supervision for a finding that he or she is a juvenile delinquent. "A court that is considering the dispositional component of a juvenile delinquency proceeding has the discretion in an appropriate case to substitute a PINS finding for the finding of juvenile delinquency".

While the procedures applicable to the Court's substitution authority under Family Court Act §311.4 are somewhat dissimilar, whether the Court substitutes a PINS petition or a PINS finding, the underlying intent is to relieve the juvenile of being stigmatized as a juvenile delinquent and to allow the Court to address the child's needs under the civil provisions of article 7 rather than in the context of a quasi-criminal juvenile delinquency proceeding.

Family Court Act §355.1 is a codification of the court's inherent authority to modify or vacate its prior orders in a juvenile delinquency proceeding, and the statute reflects the court's continuing jurisdiction and interest in a juvenile delinquency proceeding". Accordingly, pursuant to the statute, upon a motion by or on behalf of a respondent, or upon the court's own motion, a new fact-finding or dispositional hearing may be granted, and any prior order may be stayed, modified, terminated or vacated upon a showing of a substantial change of circumstances.
Because the needs and circumstances of a particular juvenile delinquent may be unique, there is no statutory definition of what constitutes a "substantial change of circumstances" for purposes of Family Court Act §355.1. While every asserted change of circumstances will not be substantial, a review of the cases reflects that this is a fact-specific determination which must be made by the Court.

Family Court Act §355.1 codifies the Family Court's inherent authority to modify or vacate a prior order entered in the course of a proceeding and nothing in the statute precludes the Court from exercising that authority on more than one occasion in the course of a juvenile delinquency proceeding. Similarly, while Family Court Act §311.4 (2) authorizes the Family Court to substitute a PINS petition for a juvenile delinquency proceeding "at any time in the proceedings" and Family Court Act §311.4 (2) authorizes the Court to substitute a PINS finding for a juvenile delinquency finding "at the conclusion of the dispositional hearing", nothing in that section purports to preclude multiple substitutions of petitions or findings in the course of a single proceeding where subsequent developments make clear that the prior substitution was an improvident exercise of judicial discretion. "Statutes are to be construed according to the ordinary meaning of their words and where a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded". Here, the statutory provisions in question provide clearly defined authority and specific procedures governing the exercise of that authority. Nothing in the language of Family Court Act §311.4 or §355.1 indicates any Legislative intention to prohibit multiple substitutions of petitions or findings or multiple applications for relief under Family Court Act §355.1.5

The reading of these statutory provisions urged by the Law Guardian, unsupported as it is by the plain language of these sections of the statute, would amount to an impermissible judicial rewriting of the statute to obtain a desired result.

While the case relied upon by the Law Guardian, Matter of Tiahek Q., appears to prohibit a resubstitution of a juvenile delinquency finding for a PINS finding, such a construction of the statute might very well discourage Family Court Judges from exercising their discretion to substitute a PINS finding for a juvenile delinquency finding, since were such a limitation to be read into the statute, the Court would thereafter be unable to take further action under article 3 to safeguard the safety and well-being of a child or to protect the community, once the initial substitution is made. There is simply no indication that the Legislature intended to limit the Court's authority in such a manner.

The Court has also considered whether the resubstitution of a juvenile delinquency finding would violate the prohibition against double jeopardy as noted in the Practice Commentaries. While the prohibition against double jeopardy applies to juvenile delinquency proceedings, the resubstitution of a juvenile delinquency finding does not constitute a second prosecution for the same crimes because the initial order substituting a PINS finding is not an acquittal, final order or a judgment upon conviction, and because a substitution under Family Court Act §311.4 (2) cannot occur unless the Court first adjudicates the child to be a juvenile delinquent pursuant to Family Court Act §352.1. Thus, an order which resubstitutes the juvenile delinquency finding merely restores respondent's status as an adjudicated juvenile delinquent, which was the position he occupied immediately prior to the Court's initial order of substitution.

On a more practical level, a construction of the statute in the manner suggested by the Law Guardian could possibly preclude the Court from entering any orders which might provide continuing services to the respondent who reached age 18 during the pendency of the motion.
Respondent has indicated his unwillingness to continue in the custody of the Office of Children and Family Services as an adjudicated juvenile delinquent. Since respondent was not placed in a restrictive setting after a finding that he committed a designated felony act and he has reached the age of 18,7 Family Court Act §355.3 (6) prohibits any extension of his placement as a juvenile delinquent absent his consent.8

Here, the reports filed with the Court on February 21, 2007 indicate that respondent is not yet prepared for a release to the community and that he would benefit from the continued services which would be provided by an extension of placement.

While Elmhurst Hospital reported that respondent does not presently suffer from any cognitive deficits or diagnosed mental illness, the February 16, 2007 report by L & W states that the respondent, who was initially admitted to that agency's PINS facility on September 28, 2004 and transferred to the agency's juvenile delinquent facility on September 22, 2006, "is not cooperating with services that have been recommended by the treatment team which could enhance his positive adjustment and progress in the RTC program." Additionally, the agency reported that respondent's mother had still not located suitable permanent housing and that she has a substance abuse problem. Moreover, the agency reports that since respondent was placed in the juvenile delinquent facility "he has not made any improvements instead he has increased his use of Marijuana/Alcohol and AWOLing. In the past five months, Gerry's maladaptive behavior has worsen[ed] as evidenced by his [adult] criminal arrest, truancy at school, frequent AWOL and his continued involvement with alcohol and drugs." Subsequent to the incident where respondent was intoxicated and fell off of an overpass sustaining a broken vertebra in his neck, he was returned to L & W and was released three times a week to attend occupational and physical therapy and that when he returned to the agency he frequently returned in an intoxicated state. Thus, the professional staff at L & W recommended that respondent be placed in a more structured alcohol and substance abuse treatment program, based upon his recent failure to comply with an out-patient treatment program to which he was referred to by the agency.

Finally, in contrast to the report by Elmhurst Hospital, the September 13, 2006 report of the psychiatric evaluation of the respondent conducted by Dr. Edward Halperin, a Board Certified Adolescent Psychiatrist, states that respondent suffers from "Oppositional Defiant Disorder and Personality Disorder, NOS with explosive features", and the psychiatrist recommended that respondent be placed in alcohol and substance abuse treatment and that he continue in placement in "a strict controlling atmosphere."
Given that respondent's consent was a prerequisite to the order extending his placement as a juvenile delinquent and that consent may not be compelled, the Court must conclude that respondent, who is now 18 years old, may revoke that consent, whether or not that is objectively in his best interests. Thus, respondent's present refusal to continue in placement with OCFS constitutes a substantial change of circumstances warranting judicial action pursuant to Family Court Act §355.1.9 Because respondent is clearly in need of continued supervision and treatment and he is manifestly incapable of caring for himself at the present time, and given his expressed willingness to continue his placement at L & W as a person in need of supervision in the custody of ACS,10 the Court will exercise its discretion and vacate the February 21, 2007 order extending respondent's placement with OCFS for L & W, and the Court will substitute a finding that respondent is a person in need of supervision for a finding of juvenile delinquency pursuant to Family Court Act §311.4 (2). Upon that substitution of the PINS finding for the juvenile delinquency finding, the Court enters an order pursuant to Family Court Act §756-a placing respondent with ACS for placement with L & W (PINS facility), upon his consent, effective February 6, 2007.
The permanency findings made by the Court in its February 21, 2007 order are hereby continued and they are incorporated into the superseding order placing respondent with ACS for L & W.
Notify the Law Guardian, the Presentment Agency, the Office of Children and Family Services, the Administration for Children's Services and the Department of Probation.

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Court Decides of License for Foster Care Should be Revoked

May 3, 2015,

A New York Family Lawyer said an application pursuant to CPLR Article 78 by petitioners PJB and VJB to, inter alia, annul the determination of respondent SCO Family of Services (SCO) dated May 6, 2010, which concluded that petitioners' residence located at 419 Pine Place, Uniondale, New York could no longer be maintained as a foster home and would be closed effective May 28, 2010, is determined as follows.

Motion by respondent SCO pursuant to CPLR 1001(a) and 1003 to dismiss the proceeding for failure to join an indispensable party is determined as follows.

A New York Divorce Lawyer said that since in or about 2005, petitioners, who allege that they possess a certificate for the care of children at board with the Nassau County Department of Social Services, have operated a foster home for the care of children at 419 Pine Street, Uniondale, New York under the auspices of respondent SCO,1 a not-for-profit foster care agency authorized by the New York State Office of Children's and Family Services to provide foster care services.2 According to petitioners, they have successfully housed several children since in or about 2005 when their relationship with the Salvation Army began.

A Brooklyn Family Lawyer said that from June 24, 2009 to January, 2010, a seventeen-year-old boy named Matthew boarded at petitioners' residence. Petitioners describe Matthew as uncommunicative and "a difficult child, who did not want to participate in personal hygiene and refused to follow rules of the house." They maintain, which respondent SCO denies, that the agency failed to notify them that Matthew suffered from bipolar disorder for which he takes medication. Although they attempted to elicit help from the Home Finding Supervisor to deal with the difficult situation they were experiencing, they allege that their calls for help were ignored.

A Long Island Family Lawyer said that an undated letter sent to respondent SCO "several months ago," petitioners set forth their concerns vis-a-vis the agency's failure to communicate and this lack of responsiveness on the part of the Home Finder. They therefore requested an opportunity to speak their minds and clarify the situation as to their future service with the agency. A meeting was held on May 5, 2010 at which the parties' respective concerns were discussed including: petitioners' lack of ability to manage therapeutic children with behavior issues; petitioners' lack of understanding of the unique needs of therapeutic children with severe behavioral issues; petitioners' difficulty in communicating with agency staff members regarding the children's needs and personal concerns; petitioners' inappropriate/hostile reaction to children's behavior during an agency meeting; and petitioners' failure to attend a requested meeting to discuss issues and concerns presented by the Home Finding Supervisor.
Petitioners' allegations of staff "slights" toward them and lack of responsiveness to their alleged calls for help were also discussed.

By letter dated May 6, 2010, the director of the Therapeutic Foster Boarding Home Program, Mineola site at SCO Family of Services, informed petitioners that respondent SCO had concluded that it was unable to maintain petitioners' residence as a foster home and it would be closed effective May 28, 2010.

Petitioners contest the legitimacy of respondent SCO's action contending that it is without merit, retaliatory and discriminatory based upon their Haitian national origin and the purported language barrier respondent falsely believed existed.

Pursuant to CPLR §7803(3), the relevant question is whether a determination was made in violation of lawful procedure, was affected by error or law, was arbitrary and capricious or an abuse of discretion. Judicial review of an administrative determination is limited to an evaluation of whether that determination is consistent with lawful procedures, whether it is arbitrary or capricious and whether it is a reasonable exercise of the agency's discretion. An arbitrary action is one without sound basis in reason and is generally taken without regard to the facts. A penalty imposed by an agency will be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness thus constituting an abuse of discretion.

With respect to the certification of foster parents, the requirements are set forth primarily in §374 through §378 of the Social Service Law and 18 NYCRR §443. Social Services Law §376 provides that: "an authorized agency which shall board out any child or minor under the age of eighteen years shall issue to the person receiving such child and/or minor for board a certificate to receive board or keep a child/or minor under the age of eighteen years."

Before a certificate can be issued, the agency is required to investigate the home evaluating such information, as inter alia, age; health; physical functioning; income; martial status; employment of the applicants; information regarding the physical facilities of the prospective foster home; the names of those persons who will be sharing living accommodations with the child in foster care, including the names of persons 18 years of age or older living in the home; whether any other application for certification or approval has ever been made, whether such application was accepted or rejected and, if rejected, the reasons therefor.

Under Social Services Law §379(1), a certificate or license to receive, board or keep any child and/or minor under the age of eighteen years "may be revoked for cause by the authorized agency or the commissioner of social services by which it was issued and may be revoked for cause by the commissioner."

In the event the agency denies certification of the foster parents or decertifies them, the foster parents may appeal the denial to certify or decertify. The appeal is directly to the Supreme Court by way of an Article 78 proceeding by filing a Notice of Petition and a Petition alleging abuse of discretion. Carried, Practice Commentaries, McKinney's Cons Laws of N.Y. Book 52A, Social Services §377 (2010).

It appears from the parties' submissions that respondent complied with the procedure governing non-renewal or revocation of a certificate or letter of approval set forth in 18 NYCRR § 443.11(a) and (b) which includes:

(a) (1) advising the foster parents before the expiration date of the certificate or letter of approval foster parents must be advised that the agency does not plan to renew the certificate or approval; (2) non-renewal or revocation of a certified or approved foster parent may be based upon such factors as failure to meet one or more of the criteria for certification or approval set forth in this Part or upon lack of need for a foster home with its particular characteristics; (3) the reasons for non-renewal or revocation must be specified in a letter postmarked at least 20 days before the expiration date or the decertification date of the certificate or approval.

(b) the agency is required to arrange for the foster parent or relative foster parent to meet with an official of the agency to review the decision and the reasons for the agency decision.

Public welfare agencies such as respondent are accorded wide discretion in the discharge of their duties. No provision of the Social Services Law, however, restricts the exercise of respondent's discretion in determining the proper placement of children in a particular foster home. In this regard, Social Services Law §378(5) provides that: "the department shall establish and may alter or amend regulations governing the issuing and revocation of such licenses and certificates [to receive, board or keep any child and/or minor] and prescribing standards, records, accommodations and equipment for the care of children and/or minors received under such licenses and certificates.”

According to the affidavit of the Director of Services to the Children Unit of the Nassau County Department of Social Services, the Nassau County Department of Social Services had no foster children in petitioners' foster home when respondent chose to close the home. Although the Department had a contract with respondent SCO, it avers that it had no role or responsibility in said respondent's decision to close petitioners' foster home and generally has no input on the closure of any voluntary agency's foster home with which it had contracts. According to the affidavit, Matthew Phillips was placed in petitioners' home during the period June 26, 2009 through Jan. 16, 2010.

The Court finds that under the circumstances extant, respondent SCO's decision to close petitioners' foster home was not arbitrary, capricious or an abuse of discretion given the respondent's duty to comply with all certification and approval requirements set forth in 18 NYCRR Part 443 and to approve or deny applications for certification as a foster home. 18 NYCRR §443.2.

Petitioners' application pursuant to CPLR Article 78, inter alia, to annul the determination of respondent SCO which resulted in the closing of petitioners' home as a foster care home is denied and the petition is hereby dismissed.

Motion by respondent SCO to dismiss the proceeding on the grounds that petitioners have failed to join a necessary party is denied as moot. In any event, the Nassau County Department of Social Service is not an indispensable party to this proceeding. This is not a situation in which complete relief cannot be accorded the parties to this action in the absence of Nassau County Department of Social Services or in which said Department may be inequitably affected by judgment rendered. CPLR 1001. The dispute at issue involves the decision rendered by respondent SCO pursuant to its statutory and regulatory authority in which the Department attests it played no part.

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Court Decides Case Under Election Law Sec.330

May 2, 2015,

A New York Family Lawyer said in two proceedings under the Election Law (Section 330) for the judicial recanvass, review and recount of all the absentee and military ballots cast in the last general election for the office of District Court Judge of the County of Nassau, in the Third Assembly District, one proceeding having been brought by Frank X. Altimari, the candidate of the Republican Party, and the other proceeding having been brought by Julius R. Lippman, the candidate of the Democratic Party, the candidate Altimari appeals from the following judgment and order of the Supreme Court, Nassau County: (1) a judgment entered January 22, 1965 after a prior appeal and the hearing held pursuant to the Court of Appeals' remittitur thereon, dated January 7 1965, 15 N.Y.2d 686, 256 N.Y.S.2d 133, 204 N.E.2d 332 [and amended February 11, 1965], which judgment declared that the two military ballots numbered 33-1 and 33-2 are valid and constitute two additional votes for candidate Lippman and that there is a tie vote for the said office, and directed that the Board of Canvassers amend its statement of canvass and the Board of Elections certify the results accordingly; and (2) an order entered January 20, 1965, which denied the candidate Altimari's motion to reopen the proceedings so as to permit the introduction of newly discovered evidence with respect to the residence and qualification of the two voters who cast and mailed the said military ballots 33-1 and 33-2.

Judgment reversed on the law and in the exercise of discretion, without costs, and proceedings remitted to Special Term to take plenary proof with respect to the eligibility and qualifications to vote of the persons who cast and mailed to two military ballots numbered 33-1 and 33-2; an for a determination as to the validity of said ballots based upon such proof. No questions of fact were considered.

A New York Divorce Lawyer said the order reversed on the law and in the exercise of discretion, without costs, and motion granted.

On this appeal we are required to determine the permissible latitude of the Special Term in taking proof under the Court of Appeals' remittitur and remission on the prior appeal. Such latitude depends: (a) upon the construction to be given to the Court of Appeals' original decision and remittitur, read in the light of its subsequent decision and its subsequent amendment of the original remittitur; and (b) upon the discretion vested in the Special Term and in this court to accept newly discovered evidence in the interests of justice.

A Queens Family Lawyer said that the two absentee voters who cast the military ballots in question are husband and wife. The husband is presently a captain in the United States Air Force and is stationed in Newfoundland, where he resides with his wife and two children. Prior to the husband's entry into military service and prior to his marriage, he resided with his parents in their house in Great Neck, Nassau County. In December, 1962, after the husband had entered military service, the parents sold their house and moved to Connecticut.

A Staten Island Family Lawyer said that based upon proof that the parents had sold their house and no longer lived in the voting district, the Election Inspectors refused to open and count these two military ballots. They did so on the ground that the son, despite his entry into military service, lost his voting residence when his parents sold the house where he had lived with them and moved to Connecticut. The Special Term and this court thereafter sustained the Election Inspectors' determination and held that, for the reason stated, such ballots should remain unopened and uncounted.

However, based upon the same proof, the Court of Appeals reached the contrary conclusion. It held 'that the grounds on which the Election Inspectors refused to open these ballots were insufficient.' At the same time the Court of Appeals also declared that: 'In view of the limitation of our jurisdiction, however, we remit the proceeding to Special Term to pass in the first instance on the validity of the two ballots' in question, numbered 33-1 and 33-2. The remittitur was in accord with this decision. Thereafter, on February 11, 1965, while this appeal was still pending in this court, the Court of Appeals amended its remittitur to include the following recital: 'This court held that the removal of the soldier's parents did not, in and of itself, deprive the soldier and his wife of the right to vote in the district in which he had previously lived with his parents.

On January 14, 1965, at the hearing held pursuant to the original remittitur of January 7, 1965 (and prior to its amendment on February 11, 1965), and again thereafter by a separate formal written motion based on supporting affidavits, the candidate Altimari attempted to offer proof of the following alleged newly discovered evidence:

(1) In 1958, the soldier, then unmarried, lived with his parents in a one-family house in Great Neck, Nassau County. In that year he joined the United States Air Force in Texas; thereafter he received his commission as a captain and was assigned to an air force base in Topeka, Kansas. Here he met and in 1960 married his wife, who had been a resident of California. After the marriage he and his wife established their first matrimonial residence at 3549 Devon Street in Topeka, Kansas.

(2) In December, 1962 the captain's parents sold their one-family house in Great Neck and purchased a one-family house in Connecticut, where they have resided since. Thereafter the captain was transferred to the air force base at Newfoundland, but for several weeks thereafter he and his wife lived with his parents in Connecticut until he was able to find living quarters near the base in Newfoundland.

(3) After his marriage the captain advised the Air Force that his home address was in Connecticut; he registered his automobile from his parents' 'Connecticut address; he received his personal mail at the Connecticut address; he considered such address to be his home address; he filed his federal income tax return from that address; he did not consider himself a resident of New York; and both he and his wife attempted to register to vote in Connecticut.
The Special Term Justice summarily rejected these offers of proof and denied such motion on the ground that under the remittitur: (a) he was required to limit the proof to the physical presentation and examination of the two disputed ballots; and (b) he was foreclosed from taking proof of any additional facts which might tend to establish the ineligibility or disqualification of the two voters by reason of their own acts--acts which were independent of the parents' removal.
Unquestionably this newly discovered evidence would have an important bearing; and, ordinarily, it would have to be considered together with any other proof which may be adduced, in order to make a proper determination as to the eligibility of these two voters and as to the validity of the ballots which they attempted to cast. The principle issue now, therefore, is whether this newly discovered evidence has been irrevocably barred from consideration by the remittitur of the Court of Appeals.

In our opinion, the Court of Appeals remittitur was never intended to and does not bar the acceptance of this newly discovered evidence. Particularly as amended, the remittitur makes abundantly clear:

(1) that the issue tendered to and decided by the Court of Appeals was limited to whether 'the removal of the soldier's parents, in and of itself, deprived the soldier and his wife of the right to vote in the district in which he had previously lived with his parents;' (2) that this was the only issue decided by it; and (3) that its remission to the Special Term left open for determination by the Special Term in the first instance every other issue affecting the validity of the ballots sought to be cast by the soldier and his wife. Obviously, their eligibility to vote is a basic and integral prerequisite which affects the validity of their ballots.

Of course, upon the prior appeal the Court of Appeals could not have given any consideration to the effect upon the right of the soldier and his wife to vote in Nassau County by reason of their own later conduct in establishing a residence or domicile elsewhere; that question was then neither involved nor raised. Indeed, it could not have been involved or raised because the record was then devoid of any facts showing the personal acts of the soldier and his wife subsequent to the removal of his parents; the proof thereof is claimed to have been first discovered on January 10, 1965-after the Court of Appeals' original decision and remittitur on January 7, 1965.
Presumably, on the application to the Court of Appeals to amend its remittitur these alleged newly discovered facts were submitted to it. Undoubtedly, it was these facts which motivated the amendment of the remittitur so as to make clear that the only question decided by the Court of Appeals was whether the removal by the soldier's parents from their home in Great Neck had deprived the soldier and his wife of the right to vote in Nassau County. From this clarification and amendment of the remittitur the only fair inference is that any other question which may arise or which may be presented is open for the lower court's uninhibited determination.

It is well settled that the remittitur must be construed in the light of the issues actually litigated and decided. Upon the remission for further proceedings it is only such specific issues which are barred from being tried do novo. With respect to new issues and new facts arising upon the subsequent trial held pursuant to the remittitur, the Court of Appeals' prior decision cannot, in the nature of things, be deemed binding or conclusive. It is binding only 'so long as the facts remain the same'; it is binding only 'where the same question arises upon the same facts;' it is not binding where 'there are new facts which subvert the ground of the former judgment and change the character or measure of relief to which the plaintiff is entitled'.

It is also well settled that, while upon the remission the Special Term is powerless to change the remittitur, nevertheless, in order to avoid an obviously unjust result it may mold its procedure and adapt its relief to the exigencies of any new facts or conditions which were not before the Court of Appeals when it made its original determination and entered its remittitur.

The Special Term, in rejecting the proffered evidence, relied on three cases. In our opinion, the court in these cases did not make any contrary determination.

We therefore conclude that under the remittitur the Special Term was authorized to take all the proof which was offered by any party affecting the eligibility of the soldier and his wife to vote in Nassau County at the last general election; and that, on the basis of the plenary proof adduced, the Special Term was authorized 'to pass in the first instance' upon such eligibility.

In any event, even if the remittitur had not authorized the Special Term to accept the newly discovered evidence, we believe that under the circumstances here the Special Term was clearly empowered, in the proper exercise of its discretion, to accept such evidence. The Special Term, however, acting on the erroneous assumption that it was without power, refused to exercise its discretion.

Since we are vested with a similar discretion, we deem it appropriate, in the exercise of our discretion, to now direct that the newly discovered evidence be accepted. In proceedings such as these , which affect the public interest and a public office, the court should unhesitatingly exercise its discretion in favor of accepting the evidence. It is material to the issue of the validity of the challenged ballots. And appellant's failure to produce it on the original hearings is understandable and excusable, since the Election Inspectors had excluded the ballots on the ground that these two voters were disqualified solely because of the parents removal from Nassau County. There was no reason then for appellant to attempt to add cumulative grounds for the disqualification of these voters. The propriety of appellant's judgment in relying on the Election Inspectors' asserted ground for disqualification may be judged by the fact that thereafter both the Special Term and this court held such ground to be valid. The need for the additional ground first arose after the Court of Appeals' original decision and remittitur of January 7, 1965, when that court held invalid the ground upon which the Election Inspectors had excluded the ballots.

Under the circumstances, therefore, when additional material evidence to support another ground is now claimed to be at hand; when such evidence was obtained promptly after the Court of Appeals' decision; and when such evidence was offered at the very inception of the new trial or hearing--before any decision had been rendered or judgment entered, it would be a grave injustice to summarily reject the evidence. Neither the original nor the amended remittitur mandates such an unjust result; nor do they serve to immobilize the exercise of discretion by the Special Term or by this court to avoid that result.

It may be noted that the right to exercise such discretion (during trial and also after trial, decision and even judgment) is conferred upon the court by statute in the broadest terms. The statute, however, merely confirms and emphasizes the basic and inherent power of the court to act in the interests of justice. It is well established that the exercise of the power to accept newly discovered evidence is 'not governed by any well defined rules' but depends 'in a great degree upon the peculiar circumstances of each case' and upon 'whether substantial justice has been done'.

Both on the law and in the exercise of discretion, the judgment and order appealed from should be reversed and the proceedings remitted to Special Term.

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Court Decides Adoption Law Issue

May 1, 2015,

A New York Family Lawyer said the court records establish that on May 6, 2003, the court adjudicated the Child V.(d.o.b. October 19, 2002, the "Child") a neglected child under Article 10 of the Family Court Act and issued a final order of placement for one year, placing the Child in the custody of the Department of Social Services ("DSS"). On November 6, 2003, C. L. filed a paternity petition. The court granted the petition on April 7, 2004 and issued a written order of filiation on April 18, 2004. On October 15, 2005 C.L. filed a petition for visitation with the Child (the "Visitation Petition"). DSS filed a petition to terminate C.L.'s parental rights on November 21, 2005 (the "TPR Petition"). Ms. G, who had voluntarily placed the Child in the custody of DSS shortly after her birth, died in December of 2005. The foster parents, who wish to adopt the Child, moved to intervene in the adjudication of the Visitation Petition. The motion to intervene was denied by order of this court dated August 12, 2005.

The Department of Social Services moved this court for a hearing to determine whether C.L. is a person whose consent to the adoption of the Child is required under Domestic Relations Law §111 or whether C.L. is limited to receiving notice of the adoption proceedings pursuant to Social Services Law §384-c.

A New York Divorce Lawyer said the application for a hearing to determine whether C.L. is a "consent father" or a "notice father" was unopposed. A hearing to determine that issue was held on May 4, 2006 and June 7, 2006. C.L. was represented by the Legal Aid Society of Nassau County. TFK, Esq. appeared for the Child. All Counsel submitted post trial memoranda. Counsel for the Child urges the court to find that C.L.'s consent to the adoption is not required by law.

This case turns on C.L.'s legal status. Should the court determine that C.L. is a parent whose consent for the adoption of the Child is required by law; the court will then proceed to adjudicate the TPR and Visitation Petitions. Conversely, if the court determines that C.L. is a parent whose rights are limited to notice of the adoption proceedings, it will dismiss the TPR and the Visitation Petitions.

A New York Family Lawyer said certain facts are not disputed. The parents were never married. The Child has resided with the foster parents who wish to adopt her since she was placed in foster care when she was four days old. The mother of the Child is deceased. C.L. filed a petition to establish paternity when the Child was almost thirteen months old. Within the six months prior to the filing of the TPR Petition, C.L.paid child support and visited with the Child under supervision.
Based on the testimony, the Court makes the following findings. The Child was born on October 22, 2002 and came into the custody of DSS who placed her with the foster parents on October 24, 2002. The Child has always resided with the foster parents. DSS did not have any contact with Ms. G during the months of October and November of 2002. Between November 2002 and January 2003, the Court finds that DSS case worker SN attempted, on approximately six occasions, to have direct contact with C.L., by calling Mr. L's Number and leaving messages for him. Mr. L's Number had been given to DSS by Ms. G.

A New York City Family Lawyer said it was not until sometime in January 2003 that the case worker was in fact able to have telephone contact with C.L. when he answered the telephone at Mr. L's Number. In January of 2003 he was advised of his need to plan for the Child. His response was to give the caller, the DSS worker, an incorrect last name, CW. The court credits the testimony of the case worker that during this first conversation in January 2003, in response to Ms. SN's revelation that Ms. G. had named him as the father, CL responded "About time." Thus, the court finds, C.L. had actual knowledge of the existence of the three month old Child and he acknowledged that he was the father during the same conversation. The case worker wrote to a CW at the address she had been given.

The court does not credit C.L.s testimony that it was not until four months later, in May of 2003, that it was he who had initiated the first contact with DSS by making a telephone call to Ms. AC. Neither is it credible that C.L. never received any telephone messages left for him by case worker SN at Mr. L's Number or that the conversation in January 2003, about which Ms. SN testified to at length, never took place.

Rather the court finds that the first contact between C.L. and DSS did in fact take place in January 2003, as the result of DSS's attempts to contact him. It was the persistence of DSS that resulted in C.L. finally answering his telephone. The court finds that from January 2003 when DSS efforts to contact him were successful until September 2003, C.L. took no actions to work with DSS in any way. If the court were to credit C.L.'s own testimony, that in June of 2003 he asked for visitation, according to this same testimony he was advised of his need to "go to court." The court finds that it was not until September of 2003, as the Child was approaching her first birthday and having known of the Child's existence since January of that year and believing himself to be the father, that C.L.made his first affirmative, albeit tentative, outreach to the Child by calling Ms. AC a week after receiving the letter sent to him on September 9, 2003.

When Ms. AC, during that telephone conversation in September, advised him to file a paternity petition in Family Court, C.L.s response was that he would do so when he was able to have time off from work. The court finds that at this time C.L. had not yet determined to take the steps necessary to obtain custody of the Child so that she could have a permanent place with him. The court finds that the testimony of the DSS workers as well as his own testimony establishes that at best, from January 2003 until September 2003, C.L. was ambivalent about assuming custody of the Child.

It was only at the end of October of 2003, that C.L.'s behavior started to change. He attended a service plan review on October 21, 2003 and appeared unannounced at DSS on October 31, 2003 with a gift for the Child. On that date, C.L. said he had filed a paternity petition in response to the case worker's inquiry. But in fact it was not so. He did not actually file the petition to establish paternity until six days later, on November 6, 2003.It was not until either the end of November or the end of December 2003 when C.L. dropped off some clothing for the Child, that, according to the testimony of the case worker, he asked for visitation with the Child, who was then between 13 and 14 months old.

C.L. asserted that he first asked for visitation in June of 2003 and again on October 31, 2003. It is not disputed that his request or requests for visitation could not have been granted because the court had not issued an order establishing him as the biological father of the Child. No order could have been issued at that time because C.L. failed to file a paternity petition until November of 2003.

By the time paternity was established pursuant to the court order of April 18, 2004, the Child was eighteen months old. It was in or around this time that C.L. began supervised visitation. The court finds that C.L. has been paying child support and visiting with the child.

A child protective agency may petition the court for a declaration that the biological father's consent to an adoption is not required. Such an application is determined by Domestic Relations Law §111. The agency bears the burden to establish the grounds for dispensing with the father's consent by demonstrating by clear and convincing evidence that "the father has not established an interest in the child sufficient to require his consent to the adoption."

It is well settled that the court is bound to give effect to the plain meaning of the words of any applicable statute where the language of that statute is clear and unambiguous, not as the court would prefer the meaning to be.

Domestic Relations Law §111, which is headed "Whose consent required", is the applicable statute for determining the status of C.L. DRL §111.2(a) states that: consent shall not be required of a parent or any other person having custody of the child who evinces an intent to forego his or her parental or custodial rights and obligations as manifested by his or her failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so.

C.L. asserts that DRL §111.2(a) is not applicable to the facts of his case. He contends that he is not a father who has manifested intent to forego his parental rights. He relies on DRL §111.1(d), urging the court to find that his consent to the adoption is required. This section mandates that consent is required of a father: [o]f a child born out-of-wedlock and placed with the adoptive parents more than six months after birth, but only if such father shall have maintained substantial and continuous or repeated contact with the child as manifested by:(I) the payment of the father toward the support of the child...and (ii)the father visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child or (iii)the father's regular communication with the child or with the person or agency having the care or custody of the child when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child.

C.L. contends that he has paid child support and visited the child regularly. Although the statute addresses "a" six month period, without qualifying which six months is "the" six months, C.L. insists that the critical period for the court's examination to determine whether or not he is a consent or notice father in his conduct during the six months which immediately precede the filing of the status petition.

C.L. seeks to distinguish himself from the fathers in Matter of Baby Girl and Matter of Shaolin G. In those cases the fathers failed to maintain contact with their children during the six months prior to the filing of the adoption petition and were found by the court to have forfeited their rights to consent to the adoption.

C.L. relies on Matter of Maria S., 145 Misc 2d 99, 545 NYS2d 676 where that court found that the children's father had taken certain positive actions in the six months immediately preceding the filing of the adoption petition and stated that the father's "... prior dereliction in maintaining a relationship with the children has not continued and therefore not relevant on the issue of abandonment viewed in the context of the foregoing analysis."

The facts before this court are distinguishable from those in Maria S., supra. In that case the parents of the children had been married and the father had lived with both the mother and the children prior to the parties' divorce. The wife remarried and she and her new husband sought to adopt the children over the objections of the children's father, who the court found had done much to rehabilitate himself and wanted to again be a presence in the children's lives.

In this case, C.L. never lived with the Child and was a complete stranger to her when he finally pursued his rights.

This court finds that Matter of Robert O, 80 NY2d 254, 590 NYS2d 37 (1992), is the case which provides the most guidance in determining what six month period is critical for determining C.L's case. In Robert O, supra , a father who had never been married to the child's mother sought to vacate an adoption based on the grounds that he had not known that his former girlfriend had become pregnant and did not know of the existence of the child until ten months after the adoption had become final. The Court of Appeals in reviewing prior cases dealing with the rights of unwed fathers concluded that:

Manifestly, the unwed father of an infant placed for adoption immediately at birth faces a unique dilemma should he desire to establish his parental rights. Any opportunity he has to shoulder the responsibility of parenthood may disappear before he has a chance to grasp it no matter how willing he is to do so. Accordingly we have acknowledged that in some instances the Constitution protects an unwed father's opportunity to develop a relationship with his infant son or daughter. This constitutional right to the opportunity to develop a qualifying relationship does not extend to all unwed fathers or arise from the mere fact of biology. The right exists only for the unwed father who manifests his willingness to assume full custody of the child and does so promptly

Promptness, the Court of Appeals instructs, must be measured in terms of the baby's life, not the father’s.

In the instant case, the questions of time and status are intertwined. This court finds that DRL § 111 does not mandate that the court limit its review of the parent's conduct to the six months preceding the filing of the adoption petition, or, in this case, the petition to determine status. The clear meaning of the statute is to provide the court with flexibility to be able to consider the totality of circumstances in any matter.

It may be that the six month period before the filing of an adoption petition or a request to determine the status of a parent is the critical six month period, as it was in Maria S., supra.

There the father had an established relationship with the children, was estranged due to drug addiction and incarceration after which he made substantial efforts at rehabilitation and reunification.

But the facts that were adduced at the hearing are not remotely similar to those in Maria S. Neither are the facts similar to the recently reported and compelling case of Matter of S. D., N.Y.L.J. 7/31/06. In this recent case, the court found that despite all the obstacles placed in his way, a sixteen year old father had done all that he could do as soon as he learned of the existence of the child, to have the court determine his filiation and his application for custody and to find that he had the right to object to the adoption of his child. That court found that he had virtually moved heaven and earth as soon as he had learned of the mother's pregnancy to assert his paternity and indeed had the right to object to the adoption of his child.

Contrasted with the facts of Maria S. and the Matter of S.D., supra , are the facts in the instant case. Although C.L. knew in January 2003 of the Child's existence and even acknowledged that he was the father, he waited to file a paternity petition until November 6, 2003. The court finds that C.L.'s filing of the paternity petition was the first act that manifested his willingness to assume full child custody and that this act was not "promptly" undertaken.

Prior to November 2003, C.L. was not committed to the Child. His failure to respond to the calls and letters of DSS, his refusal to give the case worker his correct name and his inability or unwillingness to take time from work to file a paternity petition until the Child was over twelve months old; all of this stalling, demonstrates to this court that C.L.could not or would not act promptly.

It was due to his own failure to act, despite all of the outreach efforts of DSS, that C.L. was not adjudicated the biological father of the Child until April 7, 2004. By that time the Child was eighteen months old.

Based on the foregoing, the court finds that in this case, C.L.'s consent to an adoption is not required under DRL§ 111.

However, C.L. does have the right to be heard in any future proceeding regarding the Child's adoption, pursuant to Social Service Law §111 384-c [2][a]. This provision of the statute provides that any person adjudicated by a court of this state to be a father of a child is entitled to notice of an adoption. The purpose of this notice requirement is to enable the father to be heard as to the child's best interest. SSL §384-c[3].

Therefore, it is hereby ordered that the Visitation and TPR petitions are dismissed.
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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; "...to 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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