New York Family Law Blog

Published on: July 2, 2015

Defendant Seeks TRO to Prevent Plaintiff From Filing Retirement Documents

by Stephen Bilkis

This is a family case wherein, the plaintiff, by way of Order to Show Cause, obtained a Temporary Restraining Order, (TRO), restraining and enjoining the defendants and their officers, agents, servants and employees, from filing or causing to be filed, any retirement papers for the plaintiff, and from acting with regard to removing any of the powers of authorization afforded to the plaintiff.

The Second Department, by way of Decision and Order on Motion, dated December 31, 2009, granted the defendants leave to appeal those provisions of the order of the Honorable Justice, Supreme Court, Nassau County, dated December 23, 2009, which prohibited the defendants from requiring the plaintiff to retire as of December 31, 2009, whereby the Second Department stayed such provisions pending the hearing and determination of the appeal, or pending determination by the Supreme Court, Nassau County, the Order to Show Cause returnable on January 11, 2010, whichever comes first.

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 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 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 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 26, 2015

Daughter Requests Sealing of Court Records

by Stephen Bilkis

M.D. (hereafter “Daughter”) moves this Court by way of notice of motion for leave to reargue this Court’s decision dated September 16, 2005, which denied her motion to seal her arrest record and also denied her request on her alternative argument to do so in the interests of justice.

The Court notes that the County Attorney’s Office “does not oppose” the instant motion for leave to reargue, even though it did oppose the initial application by the Daughter.

Published on: June 25, 2015

Court Rules on Case Regarding Child Neglect

by Stephen Bilkis

In a proceeding pursuant to article 6 of the Family Court Act, to adjudicate SX a permanently neglected child, and to commit him to the custody and guardianship of the Commissioner of the Nassau County Department of Social Services (DSS), the natural mother, MY, appeals from an order of disposition of the Family Court, Nassau County, entered September 16, 1983, which directed that the guardianship and custody of SX be committed to the Commissioner of the DSS on condition that the child be adopted by Mr. and Mrs. Z.

The subject of this proceeding is SX, born August 30, 1970. SX has a brother, GX, born December 4, 1967, a sister, JX, born September 20, 1971, a stepbrother, W, born May 30, 1974, and a stepsister, E, born June 26, 1975. SX’s mother is MX, who, after being divorced from SX;s father, remarried and became known as MY (the appellant).

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: 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.