Staten Island

Published on: July 12, 2015

Plaintiff Claims There is No Triable Issue of Fact

by Stephen Bilkis

The defendant moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiff’s verified complaint as there exists no triable issue of material fact with respect to the defendant’s liability for the plaintiff’s alleged injuries. The plaintiff cross moves for an order pursuant to CPLR 3025 (b) granting the plaintiff leave to amend the verified complaint to plead with further clarification the relationship between the defendant and the Old Brookville Police Department, and an order pursuant to CPLR 3212 granting summary judgment on the plaintiff’s cause of action for false arrest and false imprisonment. Both parties oppose the other party’s motion. The plaintiff seeks damages in the underlying action for personal and emotional injuries sustained on August 2, 2005, incident to the plaintiff’s alleged false arrest and false imprisonment by the Old Brookville Police Department.

On August 2, 2005, the plaintiff resided with his wife at their home in Old Brockville. The couple were in the midst of a divorce, and the wife filed a petition in the Nassau County Family Court, under docket number 8265/05, dated July 29, 2005. The wife sought an order of protection against the plaintiff husband in that Family Court proceeding, and the Court issued an order of protection dated November 23, 2005, to wit ordering the plaintiff, date of birth January 1, 1942, to observe the following conditions of behavior: refrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense against the petitioner, date of birth December 5, 1961, wherever the petitioner may be; observe such other conditions as are necessary to further the purposes of protection: the respondent husband to stay away from the petitioner’s bedroom. The Family Court directed the order of protection against the respondent husband remain in effect up to and including May 22, 2006. On August 2, 2005, at approximately 12:20 p.m.

Published on: July 7, 2015

Court Looks at Determination by Board of Assessors

by Stephen Bilkis

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Assessors of the County of Nassau dated January 5, 1998, which granted the application of the respondent Temple for a renewal of a tax exemption pursuant to Real Property and Tax Law § 420-a for the 1998-1999 school tax year and the 1999 general tax year, the petitioners appeal from a judgment of the Supreme Court, Nassau County, which, upon granting the cross motion of the respondent Temple to dismiss the proceeding, dismissed the proceeding.

The petitioners sought review of a determination of the Board of Assessors of the County of Nassau (hereinafter the Board) that the Temple (hereinafter the Temple), a religious organization chartered in the State of California, was exempt from real estate taxes on its property in Old Westbury, Nassau County. The Supreme Court granted the cross motion of the Temple to dismiss this proceeding finding that the petitioners did not have standing to challenge the Board’s determination and the Board’s determination was not arbitrary and capricious or irrational.

The courts have held that taxpayers in a community have standing to challenge an agency’s determination that a property within the community’s borders is exempted from the tax rolls. The decrease in the tax base that occurs when a property is improperly exempted from taxation has been found to constitute a cognizable injury to such taxpayers. Thus, the Supreme Court erred when it found that the petitioners did not have standing to challenge the instant exemption.

Published on: July 6, 2015

Parties Are Charged With Neglect of Their Child

by Stephen Bilkis

The court is presented with the issue of whether an attorney of record for a set of parties may inspect the court records wherein the parties were charged with neglect of their child when he was not the attorney in such proceeding. The neglect charge in such case was dismissed. The stated purpose of such inspection is to obtain evidence in an action against a doctor who was a witness in such neglect proceedings in the Family Court.

The records of any proceeding in the family court shall not be open to indiscriminate public inspection. However, the court in its discretion in any case may permit the inspection of any papers or records.

Published on: July 1, 2015

Husband Seeks Equitable Distribution in Divorce Case

by Stephen Bilkis

In this family case, the husband wishes to preserve his priority in time, perhaps for commencement date purposes under equitable distribution and the cause of action he has asserted, and that right should not be denied. Similarly, the wife wishes to proceed on her cause of action, either in the event the husband fails on his or, perhaps, under the concept of a dual divorce. Moreover, she may seek to pursue pendente lite relief under the new statutory guidelines which will only be available to her in Action # 2, commenced after October 12, 2010. A party is not obligated to counter-claim in Action #1 just because the husband has previously commenced such an action against her. Instead, the wife may assert an independent cause of action in a separate suit (Action # 2) that will not be subject to dismissal on the ground that “there is another action pending between the same parties for the same cause of action” (CPLR § 3211[a][4] ), as long as the relief requested is different from that requested in Action # 1.

In Action # 2, the wife now moves to partake in the benefits of the new matrimonial legislation and seeks, inter alia, pendente lite maintenance and counsel fees as well as partial summary judgment on grounds (DRL § 170[7] ) under the new law. She also seeks pendente lite child support, educational expenses and related relief, as well as payment of all the carrying charges for the parties home, her automobile. medical, dental and life insurance and unreimbursed medical expenses. The court notes that the instant motions were fully submitted on the date of the Preliminary Conference, January 12, 2011, at which time the husband consented to pay the carrying charges on the marital residence pendente lite, including utilities, real estate taxes and homeowner’s insurance and to maintain health insurance for the entire family and pay uncovered health expenses, provided the wife uses in network providers.

Published on: June 28, 2015

Plaintiff seeks a Writ of Mandamus

by Stephen Bilkis

In this proceeding pursuant to Article 78 of the CPLR, the petitioner seeks a judgment, in the nature of a writ of mandamus, requiring the respondent County Treasurer to permit her to redeem two contiguous parcels of real property which were the subjects of tax lien sales and, upon petitioner’s payment of the amount of said liens, together with any interest and penalties due thereon, directing the respondent County Clerk to cancel of record the deeds previously given by the respondent County Treasurer to the purchasers of the tax liens.

The petition is grounded upon the claim that the petitioner, as owner of the property, was not given actual notice of the sale of the tax liens and that the respondents failed to comply with the notice requirements of the Nassau County Administrative Code.

Published on: June 24, 2015

Plaintiffs Request Property Assessment

by Stephen Bilkis

Based on the papers filed by the parties, it is ordered that the applications are decided as follows: Petitioners bring this proceeding (Seq. No. 01), pursuant to Article 78 of the Civil Practice Law and Rules, for a judgment vacating one hundred thirty-one (131) decisions made by Small Claims Assessment Review Hearing Officers on the ground that none of the decisions provide any explanation or rationale for the adoption of the .25% Residential Assessment Ratio (“Ratio”) propounded by the Respondents (County Assessor and County Assessment Review Commission), without reference to the report of an economist which they submitted with their petitions, showing that the correct ratio is .232% or less.

Respondents cross-move (Seq. No. 02) to dismiss the petitions, or in the alternative, for a severance of the individual claims and a direction that petitioners purchase individual index numbers and file separate petitions.

Challenges to real property assessments are big business in Nassau County. By most accounts, tax certiorari proceedings in Nassau result in refunds in excess of $100,000,000.00 annually. As of 2009, the Nassau County Assessor placed the figure at approximately $90,000,000.00, 83% of which involved commercial properties. Nassau County and New York City are the only two special assessing districts in New York. This enables Nassau County to maintain separate classes of property, with different tax rates and levels of assessment. This matter involves challenges to the assessments of Class I properties, which include one, two and three-family homes. For the 2010-2011 tax year approximately 33,600 owners filed complaints on their real property assessments. As one can readily imagine, the resolution of this volume of complaints is a daunting task.

Published on: May 6, 2015

Petition Brings Case Requesting Relief Pursuant to Real Property Laws

by Stephen Bilkis

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.

Published on: April 2, 2015

Court Considers Summary Judgment Where There is No Issue of Material Fact

by Stephen Bilkis

This motion arises out of an underlying personal injury action, filed in this Court in June 2009, wherein the plaintiff alleged violations under Labor Law §§240 and 241. Plaintiff fell from a ladder while performing construction work on the improved real property owned by defendants. Plaintiff is alleging that the statutory residential exemption does not apply as the real property is in actuality, the site of plaintiff’s business entity.

On September, 2008, the owner of the property entered into a work agreement which provided that his company was to “repair and painting” the “residence”, and the contract was executed by as owner of the subject premises. Such work included the repair of shingles, siding, and painting the house, including the windows and window trimming. According to the defendants, the premises is and was at the time of the underlying action, a private one-family residence and the home of multi generations of the family. The real property included a main house and a renovated cottage. The work was to be performed on the main house.

Published on: March 27, 2015

Court Discusses Reasonable Doubt Regarding Evidence

by Stephen Bilkis

The defendant, Ms. G, a landlord and owner, is charged with various violations of the Incorporated Village of Westbury Building Code at 463 Franklin Street, Westbury, New York on January 31, 2007.

The Facts

Published on: March 22, 2015

Court Discusses the Meaning of “Household” Under the Family Court Act

by Stephen Bilkis

The defendant was charged by an information sworn to by the complainant with a violation of Section 242, subd. 3 of the Penal Law, in other words, with a second degree assault. Upon arraignment, he was represented by counsel, namely the office of the Public Defender of the County of Nassau. His lawyer asked that the matter be transferred to the Family Court of this County to be there treated as a family offense.

In support of his application, counsel states that the complainant, and the defendant, has lived together at 36 Carney Street, Glen Cove, New York, for a period of time, that they have their shared the same apartment and that in general, they have held themselves out to be man and wife. Defendant’s counsel further informed the Court that the complainant and the defendant have never been married to each other by either a ceremonial service or a civil one, nor has a marriage license ever been issued to them.

None the less, it is asserted that the circumstances under which the complainant and defendant live with each other are such as to constitute them a household within the meaning of Section 812 of the Family Court Act. Since the institution of the Family Court Act in 1962, a number of cases have been heard in this County construing the ambit of Section 812 in situations approximately similar to the one outlined above.