Westchester County

Published on: July 11, 2015

Court Looks at Order to Show Cause to Discontinue Medical Treatment

by Stephen Bilkis

The petitioner having applied to this Court for an Order directing DH (the “Patient”), a patient at Nassau University Medical Center (the “Medical Center”), to show cause why an Order should not be granted authorizing or discontinuing medical treatment for the Patient as set forth in the petition and this application having come on to be heard before the undersigned, a Justice of the Supreme Court of the State of New York, County of Nassau, on the 14th day of November, 2006.

NOW, upon the petition of AG, as President and CEO of the Medical Center, verified on November 13, 2006, and the affirmation of PC, M.D., dated November 13, 2006, and upon the order to show cause granted on November 13, 2006, together with due proof of service thereof, and Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, Allan E. Silver, Esq., of counsel, attorneys for the Medical Center, appearing in support of the application, and David A. Smith, Esq., acting as the Court appointed guardian ad litem, appearing herein to protect the rights and interests of DH, the parents of DH, MD and DH appearing in support of their request to discontinue medical treatment for their son, and a hearing having been held upon the issues raised herein, the court makes the following findings of fact and law.

Published on: July 5, 2015

Defendant Challenges the Legality of a Search

by Stephen Bilkis

The Defendant is charged with two counts Criminal Possession of a Controlled Substance in the Seventh Degree and Unlawful Fleeing of a Police Officer in the Third Degree, in violation of Penal Law §§ 220.03 and 270.25, respectively, along with Driving While Ability Impaired by Drugs, four counts of Failing to Stop at a Stop Sign, and Passing a Steady Red Light, in violation of VTL §§ 1192(4), 1172(a) and 1111(d)(1), respectively.

A hearing was held to determine issues involving probable cause for the Defendant’s arrest, suppression of all tangible evidence seized from the Defendant and/or his vehicle, and the suppression of statements allegedly made by the Defendant.

Published on: June 30, 2015

Court Discusses Case Filed by Nassau County Social Services

by Stephen Bilkis

This is a Motion by Respondent for an Order pursuant to Section 3212 of the C.P.L.R. dismissing a proceeding filed by the Nassau County Department of Social Services with prejudice on the grounds that Respondent has an absolute defense to the proceeding due to a discharge in bankruptcy of the debt allegedly owed to Nassau County Department of Social Services, and is defending against the violation petition filed by the Department interposing a defense that the arrears of $1,505.00 were discharged in bankruptcy.

Respondent filed a petition for bankruptcy in the United States District Court for the Eastern District on August 16, 1979. The debt due the Department of Social Services was included in the bankruptcy petition. The Department of Social Services received notification of the proceeding.

Published on: June 27, 2015

Plaintiff Seeks an Order Annulling Social Security Judgment

by Stephen Bilkis

This is one of a series of applications numbering between motions and cross motions almost twenty all of which deal with the same aspects of public assistance grants in the category of Aid to Dependent Children. Petitioner seeks an order annulling a determination after fair hearing by Respondent Blum and a declaratory judgment invalidating the rules of the New York State Department of Social Services with respect to the recovery of advance utility payments as well as the procedure employed by the Nassau County Department of Social Services in recovering such payments pursuant to 18 NYCRR § 352.29(e).

Petitioner and her three minor children are currently receiving public assistance in the category of Aid to Dependent Children. Having previously received such assistance between June 27, 1978 and January 15, 1979, during the interval between January 15, 1979 and their restoration to the public assistance rolls on December 12, 1979 they were not the recipients of aid in this or apparently in any other category. After their restoration to the relief rolls, in January of 1980 their utility supplier, threatened to discontinue service because of nonpayment. Petitioner sought help from the Nassau County Department of Social Services. The Department agreed to make an advance to forestall a utility shutoff pursuant to 18 NYCRR § 352.7(g)(5) provided Petitioner signed a written request.

Published on: June 23, 2015

Court Discusses Domestic Violence Charges

by Stephen Bilkis

This case involves domestic violence and a motion to dismiss the indictment and an order transferring all the proceedings herein from the County Court to the Family Court of Nassau County was raised by the defendant. Defendant is charged with assault, second degree. The particular act involved herein arose as a result of an altercation between defendant and his wife during which the defendant is charged with stabbing his wife with a knife. The defendant urges this Court to transfer the entire proceedings to the Family Court inasmuch as the alleged assault arose during a family dispute.

They are presented with the problem of whether the Family Court, in the case of a felonious assault inflicted by one spouse upon another, is the sole and exclusive forum to the exclusion of the County Court. The act complained of for which the defendant stands indicted is clearly a crime against the State if proven, beyond a reasonable doubt, to the satisfaction of a jury (Penal Law, § 242).

Published on: June 22, 2015

Court Reviews Condemnation Proceeding

by Stephen Bilkis

This is a condemnation proceeding in which the Village of Garden City sought to acquire title in fee to certain property within the village for a parking field. The property to be acquired consists of 23 parcels all of which were heretofore zoned by the village for residential purposes. The evidence showed that a change in the zoning of property in the vicinity of the subject parcels had been under study since 1951 when the trustees of the village engaged a zoning expert to confer on a general revision of the ordinance. An advisory committee prepared and submitted to the trustees a draft of a proposed new zoning ordinance. This was the subject of a public hearing on January 25, 1953. A map delineating the proposed zone changes was dated and filed in the Nassau County Clerk’s office on March 20, 1953.

On June 25, 1953, a hearing was heard with respect to the proposed revision of the zoning ordinance before the Board of Trustees and the hearing was adjourned to July 2, 1953. On November 30, 1953, the report of the advisory committee was printed, and a memorandum was submitted by such committee to the Board of Trustees in which it was recommended that several of the parcels (D-1, D-2, and D-3, Washington Avenue frontage) be changed on the proposed map from C-O to R-6 Zone. The C-O Zone permitted the use of commercial offices on the property in that zone. In the R-6 Zone the property was restricted to one-family residences. On February 18, 1954, this recommendation was approved and adopted by the village trustees over the opposition of some of the property owners. The public hearing in relation to this condemnation proceeding was had on May 27, 1954.

Published on: May 8, 2015

Plaintiff Seeks a Divorce on the Grounds of Inhumane Treatment

by Stephen Bilkis

This action seeking a divorce on the ground of cruel and inhuman treatment, and ancillary relief, was commenced on or about June 10, 2003. By order dated December 23, 2003, both parties’ applications for temporary custody were denied and an injunction was issued prohibiting either party from taking the children out of the United States. The plaintiff (Wife) was granted omnibus pendente lite financial relief pursuant to an order dated February 24, 2004. The parties entered into a written “parenting-time” stipulation on February 8, 2005. The trial of the action commenced on February 1, 2005. On that date, an inquest was conducted on grounds and the plaintiff was granted a judgment of divorce on the ground of constructive abandonment. Entry of the judgment of divorce was stayed pending the determination, after trial, of ancillary issues.

At the conclusion of the trial, the Court reserved decision, pending receipt of post-trial memoranda and summations which were thereafter served and filed by both plaintiff’s counsel, defendant’s counsel and the law guardian.

Background

Published on: May 5, 2015

Court Discusses Child’s Eligibility for State Assistance Programs

by Stephen Bilkis

Under the Federal public assistance program called Aid to Families with Dependent Children (AFDC), family income is considered in determining a child’s eligibility for relief. All of a natural father’s income is typically deemed available to his child, but the situation is more complicated where stepfathers are found. The Federal Regulations allow consideration of all of the stepfather’s income in estimating the child’s eligibility only if the applicable State law establishes a general obligation on all stepfathers to support their stepchildren, but not where the stepfather is liable to support only a stepchild likely to be a public charge.

In this decision we find, after reconciling a confusing statutory scheme, that in New York there is no general obligation of stepfathers to support their stepchildren, and that these support obligations only occur where the child is otherwise to become a public charge, or under special circumstances of agreement or estoppel. Accordingly, the stepfather’s entire income is not automatically figured to the stepchild, but as explained below, on familiar social services principles, only so much of it as is actually devoted to the child.

Published on: April 3, 2015

Petitioners Seek to Renew a Motion to Dismiss

by Stephen Bilkis

Upon the foregoing papers, petitioners individually, as preliminary executor of the estate of the decedent and as the vested beneficial owner of shares of the respondent 4C Foods Corp. held by certain trusts, moves for an order: (1) pursuant to CPLR 2221 granting leave to renew respondent’s motion to dismiss the Petition that was granted in this court’s order dated December 5, 2012, and upon renewal, denying respondent’s motion to dismiss the petition; and (2), pursuant to CPLR 3025, granting petitioners leave to file and serve an amended petition.

Petitioners’ motion is denied with respect to petitioners’ claims pursuant to Business Corporation Law §§ 623 and 806. With respect to the proposed causes of action premised on the breach of the implied covenant of good faith and fair dealing and breach of fiduciary duty, the motion to amend is denied, but with leave to file an amended pleading containing such causes of action upon the following events: (1) the executor of the estate of the decedent, is barred from transferring voting shares individually; (2) these voting shares are purchased by respondent, its directors and or its majority shareholders; and (3) such causes of action are not otherwise rendered moot by any determination made in the Nassau County declaratory judgment action. The motion for leave to file an amended petition is granted with respect to the proposed declaratory judgment claim in which petitioner seeks a declaration that the January 11, 2013 notice addressing the transfer of voting shares formerly controlled is a nullity. The special proceeding is converted to a declaratory judgment action, but any further proceedings in the action are stayed pending the determination of the Nassau County declaratory judgment action.

Published on: April 1, 2015

Petitioner Seeks to Modify Visitation

by Stephen Bilkis

The petitioner/mother, and the respondent/father, were divorced by judgment of divorce, dated February 14, 2000 and entered by the Nassau County Clerk on February 15, 2000. The judgment of divorce granted the parties joint legal custody of their children. Physical custody was awarded to the petitioner, subject to the respondent’s right to visitation as set forth in their separation agreement, dated August 31, 1998, which was incorporated (but did not merge) with the judgment of divorce. The separation agreement provided, among other things, that the father would have mid-week overnight visitation with the children.

On April 17, 2003, the petitioner filed an application with this Court for modification of the visitation provisions of the judgment of divorce. The petition requested that the respondent’s mid-week visitation be eliminated, as it was “not practical” because her new husband, had secured employment in the Albany, New York area. The petition stated that she and her four children (the two Jones children and the two children of her current marriage) would relocate to the Albany area to join her husband on or about June 30, 2003, at the end of the school year.