New York Family Law Blog

Published on: November 23, 2015

Court Rules on Guardianship Proceeding

by Stephen Bilkis

The petitioner, Delmi Y. (hereinafter referred to as “petitioner”), has filed a petition with this Court requesting that she be appointed as the guardian of her twelve-year-old nephew Orlin C. Y. (hereinafter referred to as “minor child”). The attorney for the minor child joins in the petitioner’s application and requests that this Court additionally issue an Order of Special Findings which would enable the minor child to petition the Department of Homeland Security for Special Immigrant Juvenile Status pursuant to Immigration and Nationality Act §101(a)(27)(J) and 8 Code of Federal Regulations §204.11. The respondent Carmen Y. is the biological mother of the minor child. The respondent Juan C. is the biological father of the minor child.

In addition to the petition, the petitioner and the minor child’s attorney have submitted the following: an affidavit from the minor child, a birth certificate for the minor child, a translated document signed by the minor child’s mother consenting to the petitioner having custody of the minor child, an affidavit indicating the efforts made to locate the minor child’s father, a document from the Ministry of the Public Attorney General of the Republic of El Salvador, and various other paperwork written in Spanish. Also provided was a Memorandum of Law, and a letter from the minor child’s attorney indicating that Federal Immigration Removal Proceedings are currently pending against the minor child. This Court ordered an investigation by the Nassau County Department of Social Services (hereinafter referred to as “D.S.S.”) regarding this matter. As part of their investigation, D.S.S. interviewed the minor child and the petitioner. D.S.S. provided this Court with a detailed report of the interviews and their findings.

Published on: November 23, 2015

Petitioner Seeks Guardianship for Father

by Stephen Bilkis

On or about October 8, 2004, petitioner commenced a proceeding pursuant to Article 81 of the Mental Hygiene Law for the appointment of a Guardian for his father, respondent an Alleged Incapacitated Person. The Petition alleged that as the result of a stroke occurring during a routine cardiac catherization, respondent (age 51) was currently residing in PENINSULA HOSPITAL CENTER (Head Trauma Unit), Far Rockaway, New York, in a “minimally responsive condition” and that he required assistance with all activities of daily living. Following a hearing conducted herein, the Court appointed the Petitioner, and his mother as the Co-Guardians for the Personal Needs and Property Management of respondent, an Incapacitated Person, by Order and Judgment dated February 7, 2005.

During the ensuing years, respondent was transferred to PARK TERRACE REHABILITATION AND NURSING CENTER, Corona, New York for further rehabilitation, and ultimately discharged to his residence in Great Neck, New York. At home, the Co-Guardians utilized the assistance of MAXIM HEALTH CARE SERVICES, INC. to provide full-time home health care for him.

Published on: November 21, 2015

Petitioner Claims Respondent Failed to Provide Proper Services in Guardianship Case

by Stephen Bilkis

The simple description of the cause of action in this endorsed complaint, “failure to provide proper services,” belies the difficult legal and human issues that are presented by this claim by a daughter, on behalf of her incompetent mother, against the brother and wife who took the mother in, and against the agency that provided home care services.

Plaintiff DJ is the guardian of the person and property of SN, who is now 75 years old and resides in River Manor Care Home. As described in the order appointing Ms. DJ to serve as her mother’s guardian, mother SN “suffered a stroke that has rendered her aphasic she has partial paralysis, can no longer swallow. she is nonambulatory her cognition is nonexistent and she suffers from hyperthyroidism and vascular dementia.” From February 1998 until October 2001, mother SN resided with her son, defendant RN, and his wife, defendant JN. During that period, she received home care services from defendant Rockaway Home Attendant Services, Inc., a licensed home care services agency. In October 2001, mother SN was hospitalized for a month, and then transferred to the nursing home.

Published on: November 20, 2015

Plaintiff Asks Court for Order for Protection for her Three Children

by Stephen Bilkis

On October 15, 1993, this Court issued a permanent order of protection directing the defendant to stay away from the complainant and to refrain from attempting to contact her. The People now move for an order amending the order of protection to include the complainant’s three children, two of whom are the defendant’s biological children.

The defendant was charged with Aggravated Harassment in violation of Penal Law 240.30(1) and Criminal Contempt in the Second Degree in violation of Penal Law 215.50(3) in an information bearing index number 19402/93. The complainant alleged in her supporting deposition annexed to the information that the defendant had made approximately twelve telephone calls threatening to kill her and to kill her children during the period from August 13, 1993 to September 3, 1993.

Published on: November 19, 2015

Plaintiff Brings Lawsuit over Eight Years of Attorneys Fees

by Stephen Bilkis

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.

Published on: November 18, 2015

Court Rules on Petitioner’s Request for Tax Exempt Status

by Stephen Bilkis

The issue here is whether renewal applications for four properties located in the Village of Freeport, Nassau County, are entitled to tax exemption pursuant to Real Property Tax Law § 462. We affirm the order of the Appellate Division holding that the properties are tax exempt.

On September 24, 1999, respondent, Word of Life Ministries, submitted to Nassau County renewal applications for tax exempt status for four properties on the ground that they were used as residences by “officiating clergymen.” The applications mistakenly answered “yes” in response to the question whether the properties were used for purposes other than as residences of “the officiating clergy” stating that they were used as the residences of assistant pastors. Before the tax authorities made a decision, respondent corrected the applications before the County to state that the properties were used as residences for officiating clergymen. After reviewing the applications, Nassau County concluded that the properties were not tax exempt under RPTL 462. Respondent submitted similar applications to the Village of Freeport on July 25, 2000, but the Village rejected respondent’s attempt to correct its mistake. These applications were denied on or about August 15, 2000.

Published on: November 17, 2015

Plaintiff Brings Case Regarding Collateral Estoppel

by Stephen Bilkis

The defendants contend the doctrine of collateral estoppel is applicable and would warrant a dismissal of these proceedings. On or about June 22, 1969, five youths were arraigned upon a complaint in the First District Court, Nassau County, New York, charged with violation of New York State Penal Law § 105.10 in that on June 21, 1969 at about 3:45 P.M. near the Southern State Parkway and Corona Avenue in North Valley Stream, Nassau County, New York, ‘the said defendants and each of them and each acting in concert with and aided and abetted by each other, with intent that conduct constituting a felony be performed did each agree with the other to engage in or cause performance of such conduct, to wit: the said defendants with the intent to violate § 130.35 of the Penal Law of the State of New York when by forcible compulsion they engaged in sexual intercourse with the complainant.’

Four of the youths were subsequently indicted by the Nassau County Grand Jury on July 16, 1969 for the crimes of Rape in the First Degree (P.L. § 130.35) and Sexual Abuse in the First Degree (P.L. § 130.65) and arraigned in the Nassau County Court under indictment number 27613. The fifth boy was less than 16 years of age at the time of the alleged criminal acts and was charged with being a juvenile delinquent in the Family Court of Nassau County under Article 7 of the New York State Family Court Act.

Published on: November 16, 2015

Plaintiff Brings Motion to Renew Prior Motion to Dismiss

by Stephen Bilkis

In this family case, the Defendants bring this motion seeking to reargue and renew their prior motion to dismiss, pursuant to CPLR §§ 3211 and 327, which resulted in an order of this court denying the motion. The Plaintiff opposes the present motion. Before addressing the substance of the Defendants’ present motion it is worthwhile to review the nature of the underlying action, the Defendants’ prior motion and the claims made therein. A Nassau County lawyer said that this is an action to recover monies allegedly due and owing pursuant to an equipment rental agreement (the “Agreement”) entered into by the defendant corporation and the Plaintiff’s assignor, guaranteed by the Defendant, the President of the corporation for the lease of telecommunication equipment and services.

This is an action to recover monies allegedly due and owing pursuant to an equipment rental agreement (the “Agreement”) entered into by the defendant corporation and the Plaintiff’s assignor, guaranteed by the Defendant, the President of the corporation for the lease of telecommunication equipment and services.

Published on: November 16, 2015

Plaintiff Brings Case Regarding Freedom of Information Act

by Stephen Bilkis

This is a hybrid proceeding for relief under the Freedom of Information Law (“FOIL”), set forth in Article 6 of the Public Officers Law,§§ 84-90, and for related declaratory and mandamus relief. Petitioner/plaintiff asserts that the respondent/defendant Nassau County Police Department (“NCPD” or “respondent”) has violated FOIL by consistently failing to respond properly to legitimate requests for information and documents.

It seeks not only a vacatur of denials for certain information, but also a declaration by the Court that NCPD has engaged in a pattern and practice of refusing to obey the law, and a judgment in mandamus directing the NCPD to do what it is bound to do under FOIL. It also seeks a related direction ordering respondent, in effect, to certify to the Court annually that it is in compliance with the statute. Finally, petitioner seeks to recoup its costs, including legal fees, expended in its efforts to obtain the information sought.

Published on: November 16, 2015

Court Listens to Case to Terminate Parental Rights

by Stephen Bilkis

In a child neglect proceeding pursuant to Family Court Act article 10, and a related proceeding pursuant to Social Services Law § 384–b to terminate parental rights, the mother appeals from (1) an order of the Family Court, Nassau County, dated December 18, 2009, and (2) an order of fact-finding and disposition of the same court dated May 11, 2010, which, after fact-finding and dispositional hearings, found that she had permanently neglected the subject child, terminated her parental rights as to the subject child, and placed the child in the guardianship and custody of the Nassau County Department of Social Services for the purpose of adoption.

“In proceedings to terminate parental rights based on permanent neglect, the agency must establish as a threshold matter that it made diligent efforts to encourage and strengthen the parental relationship”. However, evidence of diligent efforts on the part of the agency are not required when “the parent has failed for a period of six months to keep the agency apprised of his or her location, provided that the court may consider the particular delays or barriers an incarcerated parent may experience in keeping the agency apprised of his or her location”.