Articles Posted in Westchester County

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In a neglect proceeding pursuant to Family Court Act. Article 10, the maternal grandmother appeals from an order of the Family Court, Kings County, dated April 7, 2009, which suspended her visitation with the subject child and directed the Administration for Children’s Services to instruct the subject child’s school not to provide any information to her or allow her access to the subject child. Assigned counsel has submitted a brief in accordance with one case decided by the court, in which he moves to be relieved of his assignment to prosecute this appeal.

In child protective proceedings, counsel said the Commissioner has the burden of establishing abuse and neglect by a preponderance of the evidence. The statute provides that “proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect”. Upon proof to establish a prima facie case, the respondent must offer a satisfactory explanation to rebut the evidence of neglect. In rendering its decision, the court must set forth the specific grounds for its finding that the child had been abused or neglected.

Counsel said an order as suspended visitation between the maternal grandmother and the subject child must be dismissed as academic because that portion of the order has been superseded by a permanency hearing order dated June 11, 2009, awarding the maternal grandmother visitation with the subject child in accordance with the permanency plan.

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The question presented by the instant case is whether the evidence adduced on NYCCS’s direct case at the combined Family Court Act § 1027 hearing, for the child DD, and Family Court Act § 1028 hearing, for the children JJ and BB, establishes imminent risk sufficient to warrant the children remaining in non-kinship foster care during the pendency of these proceedings. In the Court’s view, that question must be answered in the negative since any possible risk to the children from the father can be mitigated by the issuance of a temporary order of protection and an order that the mother re-enter a domestic violence shelter and resume domestic violence counseling, as well as her participation in other recommended services.

This proceeding was initially commenced on June 3, 2010, when NYCCS filed petitions against respondent mother and respondent father pursuant to Article 10 of the Family Court Act. The petitions alleged that the mother and father failed to provide a minimum degree of care to their three children since the father committed acts of domestic violence against the mother in the presence of the children and both parents failed to ensure that the school-aged children attended school regularly.

Upon the filing of the petition, the court granted NYCCS’s request for a removal of the children and directed that they be restrictively placed with the maternal grandmother. In addition, the court entered a temporary order of protection against the father. That order directed the father to refrain from committing any family offenses against the children or the maternal grandmother and stay away from them except for visitation supervised by the grandmother or the agency.

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This is a motion brought before the Appellate Division of the Supreme Court of the State of New York, Second Department, by the respondent on appeals from two orders of fact-finding and disposition of the Family Court, Kings County, (one as to each child), both dated 9 June 2006, inter alia, to amend a decision and order of the Court dated 30 October 2007.

The court denied the motion, based upon the papers filed in support of the motion but ordered granted that branch of the motion which was to amend the decision and order. Thus, the decision and order of the Court dated 30 October 2007, in the above-entitled matter was recalled and vacated. The following decision and order was substituted.

The case:

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The petitioner and respondent are the parents of a nine (9) year old child. The parties obtained a judgment of divorce in New Jersey on June 13, 2003 and, on consent, were awarded an order of joint legal custody for the child.

A Kings County Family Lawyer said that the father filed a violation petition and a petition for modification of the custody order on April 25, 2007. The father was seeking a specific and expanded visitation schedule. By stipulation the parties resolved the visitation issues between them prior to trial.

The mother had filed a petition to modify the custody order to provide for sole legal custody of the child on May 6, 2008. A trial was conducted in Kings County Family Court for the sole purpose of determining whether the existing order of joint legal custody should be modified to award sole legal custody to the mother.

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The information dated March 28, 1968, charges the crime of Aggravated Harassment in violation of section 240.30, subdivision 2 of the Penal Law. The complaint is made and sworn to by ERG, who is defendant’s step-daughter.

Pursuant to the information, a summons for purposes of investigation was issued and served by mail. Defendant has appeared specially by her attorney and makes the within motion to vacate the summons upon the grounds that any controversy between the complainant and her father’s wife is exclusively in the jurisdiction of the Family Court and the District Court is without any jurisdiction in this matter.

Article 6, section 13, subdivision b of the New York State Constitution in establishing the Family Court, invested that Court with jurisdiction over ‘crimes and offenses by or against minors or between spouses or between parent and child or between members of the same family or household.’

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This misdemeanor information alleging the perpetration of an assault third by one Susan O’Toole and another upon the person of one Cathy O’Toole was transferred to the Family Court by the District Court, the County of Suffolk: First District.

Briefly stated, the facts are as follows: Cathy O’Toole went to a bar with her parents and brother where she saw respondent, Susan O’Toole, her brother’s wife. Susan and Cathy’s brother had been separated for some time. It is alleged by Cathy that she was assaulted by Susan and another in a parking lot outside the bar. Susan and Cathy do not reside in the same house.

At this juncture, there is only one question before the court: Whether the assault by one sister-in-law upon another constitutes a family offense within the meaning of Article 8 of the Family Court Act?

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After providing for a number of bequests, legacies and trusts in various articles of her last will and testament, Maude S. W. McKay, the decedent, disposed of the residue of her estate in the following language

‘TENTH:–All the rest, residue and remainder of my Estate, both real and personal, and wheresoever situate, I give, devise and bequeath unto The Ministers & Missionaries Benefit Board of the Northern Baptist Convention, a corporation of the State of New York, to be invested and reinvested and the income applied to the objects of said organization.

‘My will is, however, that said organization shall first use the said income for the alleviation of suffering from arthritic or other incurable disease, illness or condition, and/or for the comfortable maintenance and support, of any person or persons who may be living at the time of my decease and who may be connected by blood (but not beyond the tenth degree), either with my husband, James Pickens McKay, or with me. It is my purpose that the income on said residue shall be ultimately and solely devoted to the purposes of said organization, but that those near to me and my husband may have first call thereon for the purposes and within the limitations above mentioned. To that end it is my wish that said organization use its sound discretion in the expenditure of said income both as to amount and beneficiary, bearing in mind always that the care of incurables, and particularly arthritics, is nearest to my heart; and to said organization I leave the decision, on whatever proofs may be required, as to what persons are connected with my husband and with me as aforesaid. Should there be a balance of said income remaining in any year, after carrying out the above provisions, then said organization is empowered to use said balance in any following year for the general purposes for which it is formed.

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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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The family case at bar involves a petition for support filed pursuant to the Florida Uniform Reciprocal Enforcement of Support Law. The petitioner-wife seeks a de novo hearing relative to support for the two children of the parties’ marriage as well as support for herself. Respondent-husband, a Suffolk County resident, opposes the petition on the basis that there is presently an existing support order emanating from the Nassau County Family Court and, therefore, the petitioner’s application should be treated as one seeking an upward modification of an order of another court. Respondent contends that the Family Court may transfer the within matter pursuant to Family Court Act Sections 171 and 174 and, therefore, justify this court’s denial of a de novo hearing.

Section 41(1) of the Domestic Relations Law provides that the Uniform Support of Dependents Law ‘. . . shall be construed to furnish an additional or alternative civil remedy and shall in no way affect or impair any other remedy, civil or criminal, provided in any other statute and available to the petitioner in relation to the same subject matter.’ Section 411 of the Family Court Act provides the Family Court with exclusive original jurisdiction over support proceedings initiated under both Article 4 of the Family Court Act and in proceedings under Article 3-A of the Domestic Relations Law, known as the Uniform Support of Dependents Law. In light of this original jurisdiction and the above mentioned Section 41(1) of the Domestic Relations Law, petitioner had a choice to proceed under either the Uniform Support of Dependents Law or seek a transfer of the pending case from Nassau County and then an upward modification and enforcement of that Family Court order pursuant to the Family Court Act.

The fact that there is an existing Family Court order of support of another county is, thus, not relevant since petitioner has not sought to proceed under that section, but rather has chosen to proceed under the Uniform Support of Dependents Law as an ‘additional or alternative’ remedy which is available to her. Her selection leaves the court with no choice but to proceed with a de novo hearing on the question of support under the USDL.

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In a proceeding under article 78 of the former Civil Practice Act, against the respondents, the People, the District Attorney and the County Court of Nassau County, petitioner appeals from an order of the Supreme Court, Nassau County, dated March 14, 1963, which dismissed the petition (see opinion 38 Misc.2d 710, 238 N.Y.S.2d 864).

This proceeding has a dual purpose. It is in the nature of prohibition to prevent the respondents from proceeding with the criminal prosecution in the Nassau County Court of the pending indictment against petitioner for his (first degree) assault upon his wife. It is also in the nature of mandamus to compel the transfer of the pending criminal action against petitioner from the County Court to the new Family Court (N.Y. Const. art. 6, § 13; Family Court Act [L.1962, ch. 686, as amended, eff. September 1, 1962]).

Prohibition is not available to a petitioner whose rights can be adequately protected on appeal (Matter of Harris Motors v. Klapp, 296 N.Y. 242, 72 N.E.2d 305; Kenler v. Murtagh, 12 A.D.2d 662, 209 N.Y.S.2d 834; Matter of Duchin v. Peterson, 12 A.D.2d 622, 208 N.Y.S.2d 458, leave to appeal denied 9 N.Y.2d 609, 210 N.Y.S.2d 1025, 172 N.E.2d 293; Matter of Brandenburg v. Court of General Sessions of New York County, 189 Misc. 4, 71 N.Y.S.2d 442, affd. 272 App.Div. 1013, 74 N.Y.S.2d 906).

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