Articles Posted in Long Island

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In this accounting of the Public Administrator, the issue of kinship was referred to a court attorney/referee pursuant to SCPA 506. A hearing was conducted and various documents were admitted into evidence, including the purported family tree. All parties stipulated to waive the report of the referee and to allow the kinship issues to be decided by the court based upon the transcript of the hearing, the documentary evidence and the arguments made by the claimants and the guardian ad litem representing the interests of unknown distributees.

JP died on March 1, 2005, a resident and domiciliary of Nassau County. Letters of administration issued to the Public Administrator on July 1, 2005. The summary statement shows charges to the accounting party of $127,103.26.

Parties claiming to be the distributees of JP have appeared, and they are three alleged paternal first cousins, FPG, MP and SP and two alleged maternal first cousins, MS and AT.

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This extension of placement proceeding under Section 1055 of the Family Court Act raises questions as to the perimeters of the Family Court’s jurisdiction.

MR was born on June 19, 1982. Less than two months later, she was remanded to the Commissioner of Social Services who has had responsibility for her since that time. On November 22, 1982, after a finding of neglect, MR was placed with the Commissioner for 18 months. On December 8, 1982, the Commissioner placed the child with St. Christopher’s Home for Children, an authorized agency, which in turn placed her with F Parents, where she continues to reside.

On March 1, 1984, the Commissioner filed a petition to extend placement for one year pursuant to Section 1055 of the Family Court Act. The Commissioner’s long term plan, with the agreement of St. Christopher’s, was for eventual discharge of the child to her mother. On May 1, MR’s mother appeared in the Intake Part, was assigned counsel and indicated her intent to oppose the extension. On May 15, she requested a long adjournment, because, as her lawyer indicated, the mother is progressing very nicely. We would just like her to continue for a longer period of time.

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On June 20, 2011, the Administration for Children’s Services (ACS) filed a petition against respondent mother alleging that she derivatively severely abused the subject child by committing reckless or intentional acts that evinced a depraved indifference to human life and caused serious physical injury to the subject child’s five-year-old sibling Jamar resulting in his death.

The subject child under the age of eighteen whose parent subjected the child to reckless or intentional acts committed under circumstances evincing a depraved indifference to human life, which resulted in serious physical injury to the child as defined in subdivision ten of section 10.00 of the penal law:

The fact-finding hearing commenced on November 29, 2011 and continued on December 2, 2011, December 9, 2011, December 13, 2011, March 15, 2012, March 20, 2012, March 21, 2012, April 13, 2012, and July 9, 2012.

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In July, 1977, defendant Department of Social Services of the County of Nassau (hereinafter DSS) placed a four-year-old child and his sister in the foster home of defendant Margaret Toomer after the infant’s natural mother was sentenced to prison. Subsequent to placement, the DSS received several reports that the infant was being “beaten” and otherwise “abused” by the foster mother. DSS employees allegedly investigated the complaints and determined that the child should remain in guardian’s care pending completion of their investigation.

On or about November 17, 1978, the decedent’s grandfather and administrator of his estate, commenced the present action against the County of Nassau, the DSS and the guardian. The cause of action against the county defendants asserted, in effect, that they were negligent in placing the infant in guardian’s care, investigating the complaints of abuse against her, and failing to remove the infant from her care. Initially, the county defendants denied these allegations, and then, on April 30, 1984, some five years after the service of the answer, moved for leave to amend their answer to interpose the affirmative defense of immunity and for summary judgment dismissing the complaint insofar as it was asserted against them.

In a short form order, Special Term denied the county defendants’ motion on the ground that “no purpose would be served by allowing defendant[s] to amend their answer” since the acts here complained of “require[d] no discretion” and the “County is not immune from liability”. While we agree with Special Term’s determination, we believe additional explanation is necessary.

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The Attorney General brings this action under the Not-for-Profit Corporation Law (“NPCL”) and Article 8 of the Estates, Powers and Trusts Law to obtain injunctive relief against respondent Long Island Society for the Prevention of Cruelty to Children (“LISPCC”) and its officers and directors.

The Long Island SPCC was incorporated as a non-profit corporation under NPCL § 1403. SPCCs have an unusual status under the law. Although they are not governmental agencies, they are given some quasi-governmental powers in order to effectuate the corporate purpose of protecting children from abuse or neglect. For example, the Long Island SPCC may initiate and participate in court proceedings involving child abuse or neglect (NPCL § 1403(b)(1), Family Court Act § 1032 and Judiciary Law §§ 478 and 484), take children who are the victims of abuse and neglect into protective custody (Social Services Law § 417, Family Court Act § 1024), be appointed guardian of the person of a minor or receive or retain, at its own expense, abused or neglected children pursuant to court order [NPCL § 1403(b)(3) ]. Also, the officers and agents of the Long Island [163 Misc.2d 656] SPCC are peace officers who may acquire handguns and make arrests, providing they are acting in furtherance of the SPCC’s child protective mandate (Criminal Procedure Law §§ 2.10 [7-A], 2.20 and 140.25). However, the agents of the SPCCs are not permitted to represent themselves as police officers.

In 1991, the Attorney General conducted an investigation in which it was discovered that the LISPCC misrepresented that it was a state agency by (1) issuing identification cards to its members which described the LISPCC as a “New York State” agency; (2) using a letterhead which described the LISPCC as a “State Chartered Child Protective Not-for-Profit Organization;” (3) using a letterhead which contained a replica of the New York State seal. In addition, the agents of the LISPCC were using titles such as “detective.”

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The motion by defendant Board of Education of the Long Beach School District to dismiss the complaint for failure to state a cause of action is granted.

This is a pro se action for educational malpractice and the wrongful bringing of a neglect proceeding in the Family Court. Plaintiff and her husband have a 14 year old daughter who attends public school in Long Beach. Defendants are the Board of Education of the Long Beach School District and the Nassau County Department of Social Services (“DSS”).

By order the Judge granted DSS’ motion to dismiss the complaint on the ground of qualified immunity. By order dated January 2, 2007, Judge Jaeger denied Plaintiff’s motion for leave to reargue DSS’ motion to dismiss the complaint. The following facts concerning the initial report by the School District, DSS’ investigation, and the proceedings in Family Court, are taken from Judge Jaeger’s decision.

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In a child neglect proceeding pursuant to Family Court Act article 10, and a related proceeding pursuant to Social Services Law § 384–b to terminate parental rights, the mother appeals from (1) an order of the Family Court, Nassau County, dated December 18, 2009, and (2) an order of fact-finding and disposition of the same court dated May 11, 2010, which, after fact-finding and dispositional hearings, found that she had permanently neglected the subject child, terminated her parental rights as to the subject child, and placed the child in the guardianship and custody of the Nassau County Department of Social Services for the purpose of adoption.

“In proceedings to terminate parental rights based on permanent neglect, the agency must establish as a threshold matter that it made diligent efforts to encourage and strengthen the parental relationship”. However, evidence of diligent efforts on the part of the agency are not required when “the parent has failed for a period of six months to keep the agency apprised of his or her location, provided that the court may consider the particular delays or barriers an incarcerated parent may experience in keeping the agency apprised of his or her location”.

The mother admitted that she had no contact with the Nassau County Department of Social Services (hereinafter the DSS) from sometime in September 2006, until April 2007. Accordingly, the Family Court properly found that, notwithstanding the mother’s incarceration during a portion of this period of time, the DSS’s obligation to demonstrate diligent efforts was excused, since the whereabouts of the mother were unknown for six months or more, and the mother failed to keep the DSS apprised of her whereabouts.

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In this family case, the Defendants bring this motion seeking to reargue and renew their prior motion to dismiss, pursuant to CPLR §§ 3211 and 327, which resulted in an order of this court denying the motion. The Plaintiff opposes the present motion. Before addressing the substance of the Defendants’ present motion it is worthwhile to review the nature of the underlying action, the Defendants’ prior motion and the claims made therein. A Nassau County lawyer said that this is an action to recover monies allegedly due and owing pursuant to an equipment rental agreement (the “Agreement”) entered into by the defendant corporation and the Plaintiff’s assignor, guaranteed by the Defendant, the President of the corporation for the lease of telecommunication equipment and services.

This is an action to recover monies allegedly due and owing pursuant to an equipment rental agreement (the “Agreement”) entered into by the defendant corporation and the Plaintiff’s assignor, guaranteed by the Defendant, the President of the corporation for the lease of telecommunication equipment and services.

The Plaintiff opposed that motion arguing that jurisdiction was properly acquired over the Defendants in New York by virtue of the forum selection clause contained in the Agreement. In denying the Defendants’ motion, the court began with a recognition of the well accepted policy that forum selection clauses are prima facie valid and enforceable unless shown to be unreasonable.

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This action arises from the defendant’s treatment in 1982 of plaintiff a 36-year-old individual who was born severely mentally retarded and blind. While he was treated by defendant, plaintiff was a resident of an intermediate care facility of the United Cerebral Palsy Association of Nassau, Inc. (hereinafter UCPA).

Plaintiff had been institutionalized his whole life and, from 1972 until 1981, resided at the Suffolk Developmental Center. In an effort to control his increasingly severe episodes of self-abusive behavior, in 1978 his primary physician at the facility, the doctor began administering Haldol to him. The doctor viewed Haldol as the “drug of choice” in eliminating such behavior. The drug was initially administered in low dosages, which were gradually increased in small increments, during which time plaintiff was carefully monitored for any signs of Haldol-related side effects. Over the course of the following 13 months, the dosage was gradually reduced again to that of four milligrams per day, considered optimal by the doctor inasmuch as the likelihood of side effects was low and his severe self-injurious behavior was contained.

Plaintiff was maintained on this dosage of Haldol for the next two years under the doctor’s care, during which time his behavior improved dramatically: he participated in various recreational group activities, was independent in many aspects of daily living, and was fully ambulatory. Plaintiff’s impressive improvement did not go unnoticed by those in the mental health community close to him. He was selected to participate in a new home environment instituted by UCPA known as an intermediate care facility, the purpose of which is to establish a family-like setting where residents can enjoy community resources in an effort to allow them to maximize their potential.

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The instant appeal provides us with an occasion to discuss in detail the “reasonable certainty” evidentiary standard of CPLR 4545 (c) that governs collateral source hearings, as decisional authority on the subject is sparse.

During the early morning hours of a rainy January 13, 1995, the plaintiff MK was riding in the front passenger seat of a vehicle owned and operated by the defendant KOP. As KOP proceeded along Quaker Meeting House Road in Farmingdale at approximately 30 miles per hour, the car hydroplaned off the road and crashed into a tree, causing MK to sustain fractures to her ankle and C2 vertebra. Subsequently, MK commenced this action against KOP, as well as the defendant County of Nassau, alleging as the bases for recovery KOP’s negligent operation of the vehicle and the County’s negligent road design. Prior to trial, in an order dated August 26, 2004, the Supreme Court determined that the County was collaterally estopped from arguing that the road was not negligently designed based upon prior decisions of this Court in Furino v County of Nassau and Zawacki v County of Nassau. After a trial on the issue of liability, the jury found, on October 21, 2004, that the negligence of both KOP and the County were substantial factors contributing to the accident’s occurrence, and apportioned 13% of fault to KOP and 87% of fault to the County.

At the trial on damages, evidence was presented that after the accident, MK was transported to a hospital where her ankle was casted and her neck stabilized with a “halo device,” the fixation of which was very painful. The following two months, MK relied on the care of her future husband’s family, who assisted her with her personal needs such as bathing and using the bathroom. During that time, she relied on a wheelchair to ambulate before graduating to a walker. Subsequently, the fractures to her ankle and C2 vertebra healed, and MK was able to return to college, graduate, and obtain a job. However, the pain in her neck persisted, and she also experienced occipital headaches and numbness around her face and neck, which she attempted to treat with medications such as Vicodin and Soma. She saw a chiropractor and acupuncturist, but found no relief. After seeing a spine specialist, MK opted for spinal fusion surgery, which involved removing the disc between the C2/C3 vertebrae and replacing it with bone from her hip. However, the surgery only worsened her condition. MK then began seeing a pain management specialist who treated her pain with epidural steroid injections, cortisone shots, physical therapy, cervical rhizotomies, and a combination of narcotics, analgesics, and muscle relaxants.

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