Articles Posted in Nassau County

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2015 NY Slip Op 04676

The order of the Appellate Division should be reversed and remitted to Family Court.

Eleven year old Delroy was involved in a juvenile delinquency hearing that involved assault and attempted assault in the first, second, third degree. These charges arose during an incident with a 12 year old victim complainant, who was stabbed during an altercation. A motion was made to suppress a statement made to officers and a knife that was recovered at the scene. The testimony in question involved an interview with Delroy’s sister saying that her brother had been bullied, the two boys had fought, and Deloy had stabbed the victim.

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This family case arises out of the death of a decedent on August 25, 2003. Plaintiff, Administrator, husband of the decedent, brings this action for medical and psychiatric malpractice against a hospital and 3 doctors.

The medical and psychiatric history of the decedent, a 51 year old married woman at the time of her death, is as follows. Decedent gave birth to triplet daughters in 1982. After the birth of her daughters, she experienced postpartum depression and was, for a brief period of time, hospitalized in the psychiatric ward of the hospital where she gave.

On or about August 12, 2003, her daughter attempted suicide by taking “pills” after her friends’ drowning deaths. The husband testified at his deposition that Decedent also was depressed as a result of the children’s death and their daughter’s suicide attempt. On August 15, 2003, the child sought psychological care. She was accompanied by her parents to the appointment.

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In a related visitation proceedings pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Nassau County, dated November 30, 2012, as, after a hearing, in effect, granted his petition to modify an order of visitation dated January 14, 2010, only to the extent of awarding him supervised daytime visitation.

An order dated January 14, 2010, the Family Court awarded the father, who lives in Texas, unsupervised visitation with the subject child in New York, including overnight visitation during various school holidays. The only restrictions upon the father’s visitation were that a social worker would monitor exchanges of the subject child and would have to pre-approve any accommodations chosen by the father for overnight visitation. At one point, the Family Court modified the visitation order by suspending overnight visitation. However, on a prior appeal, this Court reversed that order of the Family Court, thereby effectively reinstating overnight visitation.

In October 2010, the father filed a petition to modify the order of visitation dated January 14, 2010 (hereinafter the January 2010 visitation order), so as to eliminate the involvement of a social worker in monitoring exchanges of the subject child and approving accommodations for overnight visitation. In opposing the father’s petition, the attorney for the child requested that any parenting time should be of short duration and at specific locations. The attorney for the child did not request supervised visitation. In an order dated December 7, 2010, the Family Court, in effect, denied the father’s petition to modify and granted the application of the attorney for the child to modify the January 2010 visitation order so as to limit the father’s parenting time to brief unsupervised visits at specific, public places.

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This is an APPEAL by nonparty Commissioner, New York State Department of Health, in a proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Health dated June 7, 2006, made after an administrative fair hearing, that so much of the income of the petitioner’s decedent as was deposited into a supplemental needs trust for the benefit of the decedent’s adult disabled son was required to be included in the calculation of the decedent’s eligibility and entitlement to Medicaid benefits during her lifetime and in the calculation of the obligation of the decedent’s estate for the reimbursement of a certain portion of those benefits, from a judgment of the Supreme Court, entered in Nassau County on January 12, 2007, which granted the petition and annulled the determination.

In New York, the concept of a supplemental needs trust originated in 1978, establishing a vehicle for parents and guardians of adult children with severe and chronic disabilities to provide for their children’s future by transferring their funds to a trust, created to pay for items that will enhance their children’s quality of life without jeopardizing their children’s eligibility for government benefits, such as Supplemental Security Income, pursuant to 42 USC § 1382 et seq. and Medicaid, pursuant to 42 USC § 1396 et seq. and Social Services Law § 363 et seq.

The issues of first impression at the appellate level are whether the transfer of a settlor/parent’s recurring income into a supplemental needs trust created for his or her disabled child must be counted toward (a) the settlor/parent’s net available monthly income for calculation of the amount of the Medicaid benefits to which the settlor/parent is entitled after he or she is determined to be eligible for Medicaid (hereinafter post-eligibility benefits) and (b) the obligation of the estate of a deceased settlor/parent for the reimbursement of a certain portion of those benefits.

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In a proceeding pursuant to CPLR article 78 to review a determination of the Director of Employee Relations of the Office of Court Administration, dated July 16, 1984, which denied the petitioners’ out-of-title work grievance, and in which the petitioners also sought declaratory relief, the petitioners appeal from a judgment of the Supreme Court, Queens County, which dismissed the petition on the merits, and dismissed the application for a declaratory judgment.

The Special Term correctly concluded that the determination of the Director of Employee Relations of the Office of Court Administration was not arbitrary or capricious. Based on the record before us, we have also determined that Special Term did not err when it found that the petitioners’ request for declaratory relief with respect to the possible future use of Court Officers and Senior Court Officers to guard prisoners in detention cells in courts other than the Family Court was. However, since court officers currently guard juveniles in detention cells at the Family Court, the legality of their use for this purpose is ripe for judicial resolution.

The petitioners’ basic argument is that the detention cells in the various courts are merely an extension of the county jail and that the Sheriff of Nassau County therefore exercises exclusive jurisdiction over them. With respect to the Family Court, this argument clearly lacks merit. Family Court Act § 304.1 precludes the use of a county jail or other facility used to detain adults to house juveniles. No statute gives the County Sheriff custody over juveniles at any time. Therefore, the detention cells at the Family Court are clearly not an extension of the county jail or otherwise under the exclusive jurisdiction of the Sheriff.

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On October 2, 2007, New York City Children’s Services (hereinafter NYCCS) filed a petition against respondent mother alleging that her son’s physical, mental or emotional condition had been impaired or was in imminent danger of becoming impaired, as a result of her failure to exercise a minimum degree of care in supplying him with an adequate education in accordance with the provisions of part I of article 65 of the Education Law. Specifically, the petition alleges that the son missed 44 days of school during the 2006-2007 school year and 18 days during the 2007-2008 school year.

On the day the petition was filed, the son was paroled to respondent under NYCCS supervision on the condition that she ensure that he attend school daily absent a medical excuse. Issue was joined on October 19, 2007.

The fact-finding hearing was conducted on July 29, 2008, November 17, 2008 and January 7, 2009. NYCCS called one witness, a caseworker, on its direct case. She testified that the original oral report transmission (hereinafter ORT) was received from the Children’s Aid Society on June 14, 2007. That day, NYCCS convened a case conference. Respondent attended that conference and initially rejected NYCCS’s offer of services since she did not believe that they would be effective.

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In this proceeding under Family Court Act article 10, the New York City Corporation Counsel, on behalf of the Administration for Children’s Services, seeks leave of the court to allow the respondent’s placement with the Commissioner of Social Services [CSS] to lapse, in light of the respondent’s placement with the New York State Division for Youth [DFY].

This court placed the respondent, now fourteen years old, with CSS on October 22, 1991. The Commissioner of Social Services brought a neglect proceeding against the respondent’s father, after the father left respondent in the care of a girlfriend without making any provision for the child’s care. Respondent’s mother died in 1987. CSS worked with the father for the respondent’s return to his care for four years, during which time the father intermittently was incarcerated. In the summer of 1995, the 13 year old respondent ran away from foster care and took up residence with his father.

In September 28, 1995 the respondent’s father took the respondent with him to steal an automobile from the parking lot of a Nassau County station of the Long Island Railroad. Both were arrested. The father was convicted of grand larceny and remains incarcerated. A delinquency petition filed against the respondent resulted in an admission to unauthorized use of an automobile [Penal Law 165.05[1]]. The Family Court of Nassau County transferred the delinquency proceeding to this court for disposition.

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The following statements of fact were found by the trial court: The defendant United States Cremation Company, Limited, is a domestic stock corporation organized in 1884 under the General Business Law (Consol. Laws, c. 20). Among the powers granted by its certificate of incorporation is the right to cremate dead human bodies and to conduct a crematory and columbarium. The defendant has operated a crematory at Fresh Pond in Queens County since 1884. It now is in the process of establishing and erecting a crematory in Nassau County. It is the owner of approximately 27 acres of land located in Central Park (now called Bethpage), town of Oyster Bay, Nassau county. Edwin C. Moore is the owner of approximately 45 acres of land which adjoins that of the defendant on the west. The land of both parties fronts on the south side of the Hempstead-Farmingdale turnpike, which leads to Pinelawn Cemetery, about three miles east. This land of the defendant is located in the district defined by the zoning ordinance of the town of Oyster Bay as a Business H District, and was so placed in a resolution of the town board of the town of Oyster Bay on May 28, 1934, after due notice and hearing. Among the uses permitted in Business H District is that of a crematory and mortuary. On June 6, 1934, a permit was issued by the duly authorized official of the town of Oyster Bay, to wit, the building inspector, to erect and operate a crematory; and immediately thereafter the defendant entered into a contract for the erection and completion of its crematory except for the retorts. Work was commenced the same day the permit was issued.

On the 17th day of August, 1934, a resident taxpayer of the town of Oyster Bay, instituted a mandamus suit in the Supreme Court to compel the town board to revoke the building permit and to compel the said town board to set aside the resolution which placed the land in a Business H District. The application for the mandamus was denied all the way through to the Court of Appeals. This suit related solely to the zoning resolution, no point being raised as to the state statute prohibiting the erection of crematories.

On June 6, 1935, one year after the issuance of the building permit, and after the defendant had completed the entire foundation work of the crematory and columbarium, this action was commenced by the adjoining landowner for a declaratory judgment setting forth the rights of the respective parties, and to have it declared that, pursuant to section 78 of the Membership Corporations Law, the defendant has no right to erect or maintain a crematory.

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In this case, respondent mother is the mother of the four subject children. The father is the father of these children and a person legally responsible for them, resides in Grenada where the children resided with a maternal aunt and visited with their father until the summer of 2005. During the years that the twins resided in Grenada, they had telephone contact with respondent mother, however, they rarely saw her.

On January 4, 2007, New York City Children’s Services (hereinafter, “NYCCS”) filed abuse and neglect petitions against respondent mother and respondent father in Kings County Family Court. The petitions alleged that respondent father committed a sex offense against the child. The above incidents were alleged to be in violation of article 130 of Penal Law, including but not limited to §§ 130.20 (sexual misconduct),1 130.65 (sexual abuse in the second degree),2 and 260.10 (endangering the welfare of a minor).

The petitions further alleged that respondent mother knew or should have known of the sex abuse being perpetrated against the child and failed to take adequate steps to protect her or the other children and allowed the abuse to continue. The petitions alleged that in the summer 2006, the child told her mother about the sex abuse being perpetuated by respondent father against the child and respondent mother ignored her, did not believe her and told her, “Shhh … don’t worry about it.” The petitions also alleged that respondent mother told the NYCCS caseworker that she did not believe that the child was abused by respondent father.

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This action to vacate a deed or, in the alternative, impress a constructive trust, was originally commenced by the executor in Supreme Court, Nassau County, and was transferred to this court by order of Hon. Thomas P. Phelan dated October 21, 2005. RM, executor of the estate of MM, now moves for summary judgment. The respondent, CS, has cross-moved for summary judgment for a declaration that the transfer was a valid gift.

MM died on July 12, 2004 leaving a will dated May 29, 1987 which was admitted to probate by decree dated March 14, 2005. Letters testamentary issued to RM, the petitioner herein. In addition to RM and Catherine, MM was survived by three other children, Thomas, James and William.

Prior to entering an assisted living facility, the decedent resided at 18 Marden Avenue, Sea Cliff, New York (hereinafter “the premises”). Pursuant to the subject October 28, 1998 deed, MM purportedly transferred her interest in the premises to CS and reserved a life estate. In addition, the deed provided as follows:

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