Articles Posted in Manhattan

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In this family case, the parties were married in August 1973. The wife is presently 52 years of age and the husband is presently 56 years of age. On the date of their marriage, plaintiff was 22 years of age and a college graduate. Defendant was then 18 years of age and a high school graduate. During the course of the marriage, four children were born to the parties, to wit: the eldest daughter, age 32; the eldest son, age 26; the youngest son, age 20; and the youngest daughter, age 13. The two youngest children, the youngest son (presently age 20) and the youngest daughter, remain unemancipated. During the course of the litigation the youngest son resided in Israel or was a resident student at A university.

The husband commenced this action in December 2004 after the wife withdrew an action commenced in November 2004. The parties litigated in Family Court from November 10, 2004, through January 31, 2005. The husband also brought a writ of habeas corpus under a separate index number against the wife and her mother which was dismissed. The Family Court action was consolidated into the Supreme Court action, on consent. The husband was granted a divorce, on consent, after proof, on June 10, 2005, on the grounds of constructive abandonment and shortly thereafter the husband gave the wife a Jewish divorce. A law guardian, was appointed for the youngest daughter, and a neutral forensic evaluator was appointed by the court.

A Manhattan Family Lawyer said that hereafter, the day set for trial on the issue of custody, all issues of custody and visitation were resolved by stipulation on the record. The agreement inter alia provided that the parties would share joint decision making of the youngest daughter, age 13, that the wife would have physical custody, there would be a parent coordinator and that the husband, the wife and child would separately enroll in therapy. The wife voluntarily, without prejudice, withdrew her request for a temporary order of protection and same was vacated, on consent. The agreement further provided for supervised visitation and a mechanism for the child and father to re-establish their relationship.

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In early December 1971, JR was the grantee of public assistance for the benefit of her four children in the Aid to Families with Dependent Children (AFDC) category. All five lived in a home in Levittown, New York, which was then owned by Mrs. JR and her former husband as tenants in common.

On December 21, 1971, Mr. JR sold his interest in the home to Mrs. JR’s parents for $9,700. Representatives of the Nassau County Department of Social Services, present at the sale, took $2,600 of the proceeds to satisfy a debt for prior public assistance issued to the family. Mrs. JR then, as part of the whole transaction, conveyed her own one-half interest in the home to her parents for no proven consideration, and she continued to live in the home with the children.

On January 15, 1972, the Nassau County Department of Social Services discontinued AFDC assistance arguing that Mrs. JR violated Social Services Law and Regulations by transferring a valuable asset without consideration. That determination was affirmed by the New York State Department of Social Services in a decision after a hearing dated April 25, 1972.

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Plaintiffs commenced the within declaratory judgment action seeking a declaration that the emergency rule is null and void, ultra vires and unconstitutional, as a taking of property without just compensation. The complaint also alleges that the rule violated Real Property Law § 226-b which regulates the assignment of leases; Real Property Law § 235-f which creates a right of occupancy but not leasehold rights for roommates; Domestic Relations Law § 11 which sets out the requirements and means for the solemnization of a marriage; and the administrative limitations in the Omnibus Housing Act of 1983, and the State Administrative Procedure Act.

By order to Show Cause dated November 13, 1989 plaintiffs moved in Supreme Court, Albany County, for a preliminary injunction enjoining the implementation of the emergency rule. An order to show cause was granted, which restrained the DHCR from “implementing or effectuating said Emergency Rule, or in any other manner promulgating, issuing, implementing or effectuating the terms, conditions or requirements thereof,” but made the motion returnable in Supreme Court, New York County.

On November 15, 1989, counsel for the plaintiffs and the DHCR entered into a stipulation which provided that the November 13, 1989 Order to Show Cause would not be construed to preclude the DHCR from taking ministerial actions necessary to comply with the procedures required for the promulgation of the regulatory amendments, which are the subject of this action, such as the filing of required Regulatory Impact Statements and Regulatory Flexibility Analyses with the Secretary of State. On December 13, 1989, the New York County IAS Court heard argument, and again extended the TRO pending determination of the preliminary injunction motion. During oral argument on the motion, the Court was informed that the DHCR was in the process of promulgating permanent regulations and had already sent out notices that a public hearing was scheduled for January 22, 1990.

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This Article 78 proceeding raises the questions whether (1) the County Commissioner of Social Services has discretion as a matter of policy and without regard to the facts of the particular case to refuse a special grant to an aid to dependent children recipient who claims that she and the children are destitute because cash has been stolen from her and (2) whether the proceeding can be maintained as a class action.

The petition alleges that petitioner is the mother of four children, that she receives public assistance in the category of Aid to Dependent Children, that on July 31, 1971 she received a check issued by the Department of Social Services in the amount of $398.00 which she cashed at the bank where she spent $3.00, putting the remaining $395.00 in an envelope in her pocketbook, that she went to the laundromat and then back to the bank and when she sought to pay for the purchases then made could not find the envelope or the money, that she reported her loss to the Department of Social Services and the police, that she was told by the Department that nothing could be done, that its failure to act on petitioner’s request results from its policy of refusing to give emergency aid or to duplicate stolen checks, that without the issuance of a duplicate grant of $395.00, petitioner and her children face exhaustion of their food supply and eviction from their rented home.

CPLR 7804(e) directs that ‘The body or officer shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court. The respondent shall also serve and submit with the answer affidavits or other written proof showing such evidentiary facts as shall entitle him to a trial of any issue of fact.’ Despite those explicit and mandatory provisions and despite the fact that Article 78 procedure ‘is exactly analogous to summary judgment’, respondent has contented himself with serving an answer denying some allegations, denying others on information and belief, and raising four affirmative defenses, but has filed neither transcript nor answering affidavit.

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The motion (seq. No. 1) by the attorney for the Third-Party Defendant County of Nassau (the County) for an order pursuant to CPLR 3212 granting Summary Judgment dismissing the Third-Party complaint and all cross-claims against the County of Nassau is granted. Cross-motion (seq. No. 2) by the attorneys for JEF for an order pursuant to CPLR §3212 granting Summary Judgment to the Defendant JEF and severing and dismissing the complaint and all cross-claims and counterclaims against said Defendant, on the ground that JEF is not individually liable for the torts or breach of contract, if any, of his co-Defendant F & F, P.C., of which Defendant JEF was at all relevant times president and sole shareholder is granted.

NS was born at Nassau County Medical Center on December 25, 1983. A medical malpractice action was commenced on her behalf against the County in 1984. JS, the mother of the Plaintiff who retained F & F, P.C. (F&F) to represent her daughter in the medical malpractice action died on April 1, 1992 during the pendency of the lawsuit. Letters of Administration were issued to JS’s daughter, MS, who was substituted as Plaintiff in the malpractice suit on behalf of the Estate of JS. The malpractice action was settled for $450,000 in 1993. Pursuant to the terms of the infant’s compromise orders (ICO) dated June 2, 1994 and modified January 31, 1995 the County was to issue a check payable to an officer of Defendant ML for the benefit of NS in the amount of $299,500.00 ($450,000.00 less attorney’s fees) and other disbursements. The funds ($299,500.00) were to be deposited by ML in investment accounts for the benefit of NS. Although the County timely issued the check in July 1994, sent it to F&F, who forwarded it to ML, the instrument was never cashed, and no account ever established. The original check was never negotiated or presented for payment. ML returned the original check to F&F with a request that an amended or modified ICO be obtained, to specify that the infant NS’s grandmother EMD (with whom the infant was living in Alabama) be identified as custodian of the infant’s account, and authorize ML to pay income taxes on behalf of the infant on the interest earned. F&F obtained a modified ICO in the malpractice action on January 31, 1995. An attorney working on an “of counsel” capacity for F&F on the malpractice action, forwarded a copy of the modified ICO to EMD, on February 5, 1999 and wrote to ML on February 6, 1999, enclosing the original and modified ICO’s and the check dated July 21, 1994 in the sum of $299,500. ML received the July 21, 1994 check in the sum of $299,500, but failed to open the infant account pursuant to the modified ICO or notify any of the parties that the check was missing.

Subsequent thereto, on or about February 26, 1996, ML engaged the services of the Locator Services Group, Ltd. (Locator) to recover the settlement check. Locator discovered that the original check was uncashed. Locator entered into an agreement with ML, dated February 6, 1996, to act on its behalf to recover the funds. In addition, ML granted Locator a Limited Power of Attorney. Locator then allegedly contacted F&F, P.C. to obtain information regarding NS and contracted with EMD the guardian of NS, to act on her behalf regarding the missing funds. Locator then allegedly contacted the County. After Locator and ML satisfied the County that the original check had not been cashed, the County issued a replacement check in the sum of $299,500.00 payable to ML for the benefit of NS. On June 24, 1996, Locator deposited $269,550 in a money market account, in trust for NS, after deducting a $29,950 service fee.

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In a case that is one of first impression, this court is confronted with two novel questions: does the attorney confidential privilege survive the death of the client? And, if indeed the privilege does survive, under what circumstances, if any, may the court pierce through the veil of confidentiality?

The defendant, AV, was indicted on January 15, 2002 by a grand jury of the County of Nassau, New York, for the death of RH. The charges are murder in the second degree as an intentional act under Penal Law § 125.25 (1), and murder in the second degree under circumstances involving a depraved indifference to human life under Penal Law § 125.25 (2). The crime predates the 1995 statutory amendments to the Penal Law, and as such is not a capital offense.

The incident is alleged to have occurred on or about October 28, 1979. In the early morning hours of that day, at the Club Bar on Rockaway Avenue in Valley Stream, Nassau County, New York, the defendant, AV, DC and RH had been talking and drinking at the tavern. After several hours, they left at approximately the same time. Shortly thereafter, Hogan was found stabbed and bleeding to death outside of the bar. AV vanished and was not located by Nassau County law enforcement officers until September 2001.

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This Civil Court action involves a dispute over legal fees that span a period of nearly eight (8) years. The deterioration of the attorney-client relationship and the legal action that ensue, often reveal acts and omissions by both parties that requires judicial intervention and scrutiny.

The particulars of this dispute unfolded in this sequence of events. The Plaintiff is the senior attorney in a law office and is admitted to practice law in the State of New York. The Defendant, is a resident of the State of New Jersey. Based on the record the fiancé of the Defendant referred her to the law office for legal representation based on the fact that the aforementioned law office had successfully defended him in his divorce action. According to the parties, the parties participated in a meeting at the law office where the parties discussed the legal action proposed by plaintiff to remove tenants from a residential apartment in Brooklyn.

It this stage, it is appropriate to divulge the factual history of a divorce action between defendant and her former spouse in the State of New Jersey. The factual history as presented by plaintiff in documentary evidence admitted as Court Exhibit “1” disclose these facts. In or about August 7, 2002, defendant filed for a divorce against her husband in the Superior Court of New Jersey in the Chancery Division of the Family Part in Bergen County, New Jersey. Issue was joined by the service and filing of the Defendant’s answer in or about November 3, 2002.

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This is a case where a motion was brought by the Deputy County Attorney’s Office, on behalf of the Nassau County Department of Social Services, seeking to have the Court direct the respondent to submit to DNA testing for the purpose of establishing paternity of the subject child. Both the respondent and law guardian submitted opposition papers invoking the doctrine of equitable estoppel, arguing that the child has an intact father-child relationship with another individual.

This matter was initiated when the Department filed a petition for paternity and support against respondent. The Magistrate presided, and referred the matter to this Court once the issue of equitable estoppel was raised.

The doctrine of equitable estoppel may be used in a variety of family law matters including custody, visitation, support and, as here, paternity. Regardless of whether it is being used in an offensive posture to enforce rights or a defensive posture to prevent rights from being enforced, it is only to be used to protect the best interests of the child or children involved. Id. Herein, the respondent and law guardian seek to invoke the doctrine in an defensive posture, seeking to prevent respondent from having to take a DNA test.

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That upon the following papers numbered 1 to 41 read on these motions for intervention and preliminary injunction; Order to Show Cause and supporting papers 1-10: 11-20 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 21 – 37 ; Replying Affidavits and supporting papers 38-41 ; Other _; (and after hearing counsel in support and opposed to the motion) it is,

Ordered that the within two (2) separate orders to show cause by independent proposed plaintiff-intervenors, DR and SR respectively, are consolidated for determination herein, and are granted. The applicants seek leave to intervene in the above-indexed action as party plaintiffs and on behalf of their eligible minor dependent children; and it is

Ordered that the movants’ request for permission to file the attached proposed summons and verified complaint is granted, and the pleadings are deemed filed and served. Defendants shall have the opportunity to file responsive pleadings within 20 days of service of the within order with notice of entry thereon; and it is

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It has been observed by our court that “the natural right of visitation jointly enjoyed by the noncustodial parent and the child is more precious than any property right” and that “the best interests of the child would be furthered by the child being nurtured and guided by both of the natural parents”. Indeed, a custodial parent’s interference with the relationship between a child and a noncustodial parent has been said to be “an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent”. Such interference with the relationship between a child and a noncustodial parent can take many forms, the obvious being the outright denial of visitation by making the child physically unavailable at the appointed time. However, the instant case involves a more subtle and insidious form of interference, a form of interference which, in many respects, has the potential for greater and more permanent damage to the emotional psyche of a young child than other forms of interference; namely, the psychological poisoning of a young person’s mind to turn him or her away from the noncustodial parent. In this case, if left with their mother, the children would have no relationship with their father given the mother’s constant and consistent single-minded teaching of the children that their father is dangerous. She has demonstrated that she is unable and unwilling to support the father’s visitation; and it was, therefore, an improvident exercise of discretion to deny the father’s petition for a change of custody.

The parties herein were married on August 21, 1982, and had four children together. The father left the marital residence in November 1988, and a divorce action was commenced the following month. Following a trial on the issues of equitable distribution, support, and maintenance held in April 1991, a memorandum decision was issued on June 1, 1992. Although the father had, during the early stages of the divorce action, stipulated to the mother having custody of the children, he moved, by order to show cause dated June 17, 1992, inter alia, for a change of custody to him, with the mother to be given only supervised visitation based upon what he claimed to be the mother’s “bizarre and dangerous behavior” which was “calculated to destroy the children’s relationship with him”.

In primary part, the father referred to the mother’s persistent and uncorroborated allegations that he was sexually abusing their children, her continuing to make new claims of abuse even though all other claims had been determined to be unfounded. He suggested the possibility that the mother herself may have caused the youngest child’s vaginal and rectal area to become reddened prior to the mother’s bringing her to the hospital. The father further noted the mother’s ongoing interference with visitation by various other means, including making accusations of sexual abuse and warning him not to engage in such activities in the presence of the children. In the father’s view, a change in custody was critical to the children’s well-being and mental health.

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