Bronx

Published on: July 9, 2015

Respondent Engaged in Criminal Sex Acts With a Minor

by Stephen Bilkis

In a case, it is alleged that on or about March 12, 2005, at about 5:00 PM, at x New York, Nassau County, State of New York, the respondent engaged in conduct, which if engaged in by a person sixteen (16) years of age or older, would constitute the crimes of Criminal Sexual Act in the First Degree, in violation of Penal Law §130.50(3), a class B Felony; Attempted Criminal Sexual Act in the First Degree, in violation of Penal Law §§110/130.50.(3), a class C Felony; Sexual Abuse in the First Degree, in violation of Penal Law §130.65(3), a class D Felony; Attempted Sexual Abuse in the First Degree, in violation of Penal Law §§110/130.65(3), a class E Felony; and Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1), a class A Misdemeanor.

A Nassau County family lawyer said that the respondent engaged and/or attempted to engage in oral sexual conduct with another person who is less than eleven years old; in that respondent put his mouth on the complainant’s penis. The complainant is six years old.

Published on: July 9, 2015

Petitioner Brings Action for Preliminary Injuction

by Stephen Bilkis

This is an application for a preliminary injunction. The proceeding was commenced by Petitioner by order to show cause and petition seeking a judgment declaring him to be the owner of real property located at Merrick, New York (the Property), or imposing a constructive trust. The order to show cause, which was issued on November 9, 2007, contained a temporary restraining order restraining respondent and/or her agents from transferring, selling or otherwise encumbering the Property and from terminating the tenancy of a brokerage) pending the return date of the order to show cause. Jurisdiction is complete.

On December 5, 2007, the court held a hearing on whether a preliminary injunction should issue. The hearing continued on December 6, 2007 and concluded the following day.

Published on: July 3, 2015

Respondent Claims that Plaintiff Failed to State a Cause of Action

by Stephen Bilkis

The matter before the court is a Motion filed by counsel for the Respondent for an Order pursuant to the provisions of Sections 100.15, 100.20, 100.30 and 100.40 of the Criminal Procedure Law, dismissing the petition for failure to state a cause of action. The original petition herein was filed by a Nassau County Detective assigned to the Juvenile Aid Bureau of the Nassau County Police Department.

The Respondent contends that since the petition was not verified in the manner prescribed by Section 100.30 of the Criminal Procedure Law and since the statement of the complainant which supports the petition was not verified as required by Section 100.20 of the Criminal Procedure Law, the petition must be dismissed.

Published on: June 26, 2015

Daughter Requests Sealing of Court Records

by Stephen Bilkis

M.D. (hereafter “Daughter”) moves this Court by way of notice of motion for leave to reargue this Court’s decision dated September 16, 2005, which denied her motion to seal her arrest record and also denied her request on her alternative argument to do so in the interests of justice.

The Court notes that the County Attorney’s Office “does not oppose” the instant motion for leave to reargue, even though it did oppose the initial application by the Daughter.

Published on: March 19, 2015

Defendants Seek Summary Judgment Pursuant to CPLR 3212

by Stephen Bilkis

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

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

Published on: March 14, 2015

Petitioner Contends Several Flaws with Court Trial

by Stephen Bilkis

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

On March 18, 1998 the police informant wrote a letter to Surrogate informing him of defendant’s intentions and offering to be of assistance to law enforcement. Surrogate forwarded the letter to the Nassau County District Attorney’s office. In response to defendant’s letter, ADA and the investigator of the Nassau County District Attorney’s Office arranged to meet with him on March 24. At the meeting Ms. Meister questioned Miller about the matters mentioned in his letter to Surrogate took notes, and told him she would get back to him shortly as to whether he would be accepted for cooperation with the District Attorney’s office. On June 3, defendant again met with the police informant and stated that he wanted to “rearrange” the hit and to have the police informant contact and act as “the middleman.” Defendant also indicated that he had a $2,000 check which was available as a down payment on the contract. An indictment was filed against defendant on June 11, 1998.

Published on: March 12, 2015

Court Discusses Entitled of a Judgment According to Law

by Stephen Bilkis

This is an action to recover damages for medical malpractice. The plaintiffs allege that the defendant a plastic surgeon, failed to timely diagnose plaintiff’s breast cancer. More specifically, plaintiffs allege in their Bill of Particulars that the defendants failed to appreciate the signs and symptoms of breast cancer, including the plaintiff’s complaint of a persistent, palpable left breast lump; failed to refer her for a sonogram and/or breast biopsy; failed to refer her to a breast surgeon; diagnosed her lump as due to an implant valve rather than a cancerous mass; gave the cancer an opportunity to spread and metastasize; and, failed to recommend a short interval follow up regarding her complaint of a breast lump. Plaintiffs claim that as the result of the delay in diagnosis, plaintiff suffered infiltrating ductal carcinoma, requiring left breast lumpectomy and axillary lymph node dissection, metastasis to three lymph nodes, chemotherapy and radiation. The plaintiffs maintain, inter alia, that defendant erroneously diagnosed plaintiff’s lump in her breast on November 11, 2004 as the valve of an implant, which, plaintiffs maintain, was actually a breast cancer lump that did not get diagnosed until nearly one year later in October, 2005.

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

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damages. In a medical malpractice action, a defendant doctor or hospital moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether it was negligent. More specifically, “on a motion by a defendant for summary judgment in a medical malpractice action, the defendant has the initial burden of establishing, prima facie, that he or she did not depart from good and accepted medical practice, or if there was such a departure, that it was not a proximate cause of the plaintiff’s injuries.”

Published on: March 8, 2015

Court Discusses “Operation Midway” Program

by Stephen Bilkis

On the face of it, these are merely two motions by the District Attorney for orders restoring two cases to the Trial Calendar and precluding them from admission to the Operation Midway Program. However, the broader thrust of these applications is the claim by the District Attorney that before the Administrative Judge of the County Court, in the exercise of his discretion, may consider a defendant for Operation Midway, the ‘consent’ of the District Attorney is required.

For a genuine understanding of what is at stake, a history of Operation Midway-type diversion programs is clearly in order. The following background emerges from a scholarly article by a Professor of Law at the University of Chicago and Co-director of the Center for Studies in Criminal Justice, as it appeared in Vol. 41, pp. 224–225, 238, Number 2, Winter 1974 of the University of Chicago Law Review. ‘In 1967 the Vera Institute of Justice established the Manhattan Court Employment Project to divert criminal defendants after their arraignment on felony or misdemeanor charges into a program of group therapy and employment counseling. If a defendant succeeds in a program and obtains a job, his pending criminal charges are dismissed. The goals of this innovative program are eloquently stated in the Vera Institute’s ten year report:

Published on: October 10, 2014

Father Appeals Order Granting Sole Custody to Mother

by Stephen Bilkis

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Nassau County, which, without a hearing, inter alia, granted sole custody of the subject child to the mother, with child visitation to the father.

A New York Family Lawyer said that an award of custody must be based upon the best interests of the child, and there is no right of either parent to custody of the child. Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed. Therefore, as a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing.

Here, a New York Divorce Lawyer said in light of the parties’ conflicting allegations, the Family Court erred in awarding sole custody of the subject child to the mother without the benefit of an evidentiary hearing. Nor did the court conduct an examination of the parties, interview the child, or solicit the opinion of the attorney for the child. Under such circumstances, it cannot be concluded that the court possessed sufficient information to render an informed determination consistent with the child’s best interests. Accordingly, the court remits the matter to the Family Court, Nassau County, for a hearing and, thereafter, a new determination on the custody petition.

Published on: September 24, 2014

Father Fights for Custody of Eighteen Month Old

by Stephen Bilkis

A New York Family Lawyer said the Child was born on October 22, 2002 and came into the custody of Department of Social Services (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 the case worker during the months of October and November of 2002. Between November 2002 and January 2003, the Court finds that the second DSS case worker attempted, on approximately six occasions, to have direct contact with the father, by calling him number and leaving messages for him. The father’s number had been given to DSS by the first case worker.

It was not until sometime in January 2003 that the case worker was in fact able to have telephone contact with the father when he answered the telephone. 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. The court credits the testimony of the case worker that during this first conversation in January 2003, in response to the revelation that first caseworker had named him as the father, he responded “about time.” Thus, the court finds that he 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 the address she had been given.

A New York Divorce Lawyer said the court does not credit the father’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. Neither is it credible that the father never received any telephone messages left for him by case worker at his number or that the conversation in January 2003, about which the caseworker testified to at length, never took place.