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Jack Richard Lebowitz
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Jack Lebowitz’s Answers

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  • Having a serious conflict of interest with dealing in current attorney should I contact the bar to try to have them TRY to

    resolve it? file a grievance, before or after I fire him?. Or hire a legal malpractice attorney to take care this emergency issue concerning my minor child?

    Jack’s Answer

    Agree with Mr. Rafter. You are mixing apples, oranges and bananas here and making a smoothy. If I had to parse out your complaint, it sounds like your family law/custody attorney is not doing a good job for you, in your opinion. This may be the case, and you should just find another attorney with whom you are more on the same wavelength and you feel more comfortable.

    If your attorney is truly not bring diligent and prepared, or charged you an unreasonable fee for the dork he us doing, or first return your calls or emails that may be something you can take up with the bar authorities as those things violate the attorney's obligations of professional responsibility.

    A conflict of interest would be if the attorney once represented you in a custody or matrimonial case and is now representing your ex misusing confidential information against you. I would guess this isn't the case because attorneys generally "conflict check" before talking a case. A conflict is a narrow concept and not what many people think it means, things like the attorney simply knows another party, witness or the judge. It probably isn't malpractice either, since that would mean you lost a custody case you should have won simply due to your attorney's bad lawyering. I do custody cases and appreciate they turn on many factual issues concerning the families; I find it hard to imagine where just something a lawyer said or did in such a case could control the outcome to that extent.

    And no malpractice case us going to deal with an "emergency" custody issue. You need a new lawyer to deal with tius emergency, if feasible, with a new petition for modification of enforcement and an order to show cause, or involve CPS and the police if warranted.

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  • When pro se vs. pro se, is it better to cite cplr... or play dumb so that both sides appear even?

    my assailant is suing me pro se for malicious prosecution, intentional infliction of emotional distress and and conspiracy to arrest. i will answer and counterclaim pro se. here's my question: is it better to cite cplr and write as good a pap...

    Jack’s Answer

    My 0.03 is to follow the Civil Practice a Rules as best you can without citing to them unnecessarily and appearing like a "smarty pants". At the preliminary stage you need to look at the sections on pleadings (how to frame an answer and affinimative defenses, service of papers and verification, then look at the sections on motions to dismiss and summary judgment, as well as discovery (Art 31). While I wouldn't excessively cite the rules or accuse your opponent of violating harmless technicalities that don't prejudice you, you can look at the CPLR statute books in a public library reference section or a county Supreme Court library as opposed to online, as the books you can find in libraries have examples of the forms to be used for the various sections on pleadings, motions, discovery demands and so forth which are very valuable as guides to follow. The forms encompass the guidances of the rules, so you needn't officiously cite the rules by section, while remaining confident your papers are following the rules. Every county is required by statute law to have a Supreme Court libarary which is open to the general public. Sadly, in this era of budget cuts, many of the libraries are not staffed, so it's harder to find the right books and treatises without a librarians assistance, and many of the books are also not kept up to date with the annual supplements as they once were. Still, the libraries are a good resource and the price is right!

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  • Can my neighbors stop my Devolper from rezoning my land?

    I live on 3 acres of land in the heart of a very desirable area. 6 mos ago I sold it to a devolper who won the bidding war over the property. It is currently zoned R3 He wants to zone it MFR-5. Very up scaled 2 story apartments .15 total The pro...

    Jack’s Answer

    A rezoning is a political and legislative decision of a City, Town or Village with a zoning law or ordinance. As such, it is up to the discretion of the legislators. Under New York Law, such decisions are supposed to be in accordance with a comprehensive plan, but especially for amendments to a zoning law like changing use districts, this is a weak and essentially unenforceable requirement. Like all political, decisions, politicians can be influenced by developers who fund election campaigns and area landowners who come to the meetings and vote. Generally whatever they decide yea or nay is not subject to challenge so long as it complies with minimal procedural requirements such as advance notice prescribed in the zoning law, a public hearing and open meetings law requirements (unlike the other way of skinning this cat, a use variance from the ZBA which must meet stringent "hardship" requirements).

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  • In NY can a court enforce a father to comply with visitation of his children?

    Visitation dates were set in court. I have last min business trip during one of my 3 visitation weeks. I explained to my ex and she said she's taking me back to court to enforce it. Can this be done?

    Jack’s Answer

    Duplicate question. See my answer on other question.

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  • In NY can a court enforce a father to comply with visitation of his children?

    Visitation dates were set in court. I have last min business trip during one of my 3 visitation weeks. I explained to my ex and she said she's taking me back to court to enforce it. Can this be done?

    Jack’s Answer

    Visitation is generally a right and an opportunity for the non-custodial parent. It is definitely not an obligation which can be enforced. It is not intended as respite child care or babysitting for the custodial parent. The only obligation is usually reasonable advance notice so as to not disappoint the children, generally at least 24 hours which many orders stipulate, unless your order states a different and specific advance notice period.

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  • How To Serve Divorce Papers On Spouse If He's Hiding?

    I'm trying to serve my spouse with divorce papers and he won't answer the door. One time his mother answered but she's covering for him and said he lives there but only comes to the house sometimes. Can't we just give the divorce papers to his mot...

    Jack’s Answer

    You should consult with a professional process server who can follow the prescribed steps to properly serve your spouse personally, and then use substituted service like "nail and mail" after documenting a diligent attempt. Your "do it yourself" approach here is not only not seemingly effective, but is legally flawed in that a party cannot serve the opposite party: you need an unrelated person over the age of 18 who is not a party to do service and prepare a correct sworn affidavit of service.

    I assume when you say "I'm trying to serve [your] spouse" you mean you yourself are doing this. This is improper because of the incentives for parties to lie about serving an opposite party directly.

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  • Should I pursue a civil suit for costs associated with higher interest rates for an incorrectly reported public record?

    Long story short, the interest rates on one of my credit cards has been getting ridiculous, so I decided to sit down with someone from my credit union to talk about a balance transfer so I could negotiate a lower interest rate. Unfortunately, ther...

    Jack’s Answer

    Color me cynical, but I think you know the answer to that question. If credit reporting and scoring agencies were responsible under the standards of negligence and reasonable care for the effects of their errors, they'd generally be more careful than they are.

    Federal laws such probably give you the right to MAYBE have these errors corrected after you spend a few hundred hour talking to folks in a Phillipines call center followed by an extensive round on filing overwhelming documentation of this error (your father's birth and death certificate, fingerprints, affidavits, etc.) and then appealing one sentence unsigned computer printouts from the lenders (if they can be located) that the debt in question is "valid".

    Good luck.

    Caveat: I've done NO legal research on this or seen whether any individual or class action lawsuits have ever found a data provider liable for falsely defamatory credit information, just going with my gut and some decades of experience in the Corporate States of America. I'd be glad to be proven wrong, however.

    Subject changed from "ethics" which deals with attorney discipline, not business ethics in the broader sense, to credit repair.

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  • What rights do I have with a dispute over a fence on a property line?

    I'm buying a house. According to the survey, the back neighbors fence is 3 feet on our property line. The neighbor is being very difficult about the situation. Do we have any legal recourse to force them to move the fence off our property? If ...

    Jack’s Answer

    Agree with Mr. Mevorach that you should bring this problem to the seller's attention to deal with before closing, and perhaps seek an adjustment in the purchase price if the neighbor's incursion affects the value or substantial size of the lot or access. You do need a staked survey (location of property boundaries by a licensed surveyor) to verify the fence is on your property. Judicial relief may be available to the seller or you under the Real Property Actions and Proceedings Law, a state statute.

    However, one yellow flag is the potential for the neighbor to claim the defense of "adverse possession" or a "prescriptive easement" essentially owning the additional land where the fence is on "your" land and changing the rear lot line to where the fence is. This situation can happen if the fence was there for over 10 years and your sellers knew it was there, didn't complain or ask the fence to be moved, didn't give permission and the back neighbor believed that's where his lot line was (that is, he owned the strip of land now under dispute). This is, obviously,

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  • I wish to file a notice of claim against the Town of Islip, in Suffolk County New York.

    I believe that the Town of Islip Building Department is engaged in an ongoing course of conduct that subjects homeowners who attempt to comply with building codes and requirements to unnecessary expense and duress by intentionally, or by complete ...

    Jack’s Answer

    You should consult with an attorney as soon as possible after the Town Building Department does something which directly affects YOUR property. You may have to first file an Article 78 proceeding to contest the action against your property. For reasons of legal principles which would not be able to explain in a few words, you may not be able to contest this "ongoing course of conduct" involving other people and their property because of lack of "standing" to challenge those decisions in a judicial proceeding, and before you file a "Notice of Claim" (which generally involves a tort claim, such as a personal injury") you may have to show you undertook preliminary administrative review proceedings with respect to the decision that affected you to comply with another legal doctrine called "exhaustion of administrative remedies".

    Both the Article 78 and Notice of Claim proceedings have very short statutes of limitation from as little as 30 days for zoning related decisions to four months, 90 days in the case of Notices of Claim. Therefore, if there is some particular decision that directly affected YOU and YOUR property, you need to speak with a local attorney in Suffolk County familiar with administrative law and zoning/planning as soon as possible so that a possible claim does not lapse due to statutes of limitation.

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  • Checking up on an attorney.

    I have an attorney who practiced in one state for awhile now he works as an attorney for a different state only. I have a case involving an attorney in the state and town that he use to work in. Do the state bars keep tract of which firms an atto...

    Jack’s Answer

    Generally speaking (as far as New York and the other states I am familiar with), those states with a current registration requirement do not keep employment histories. Sometimes directories such as this site or Martindale-Hubbell (or firm websites) have biographies or profiles that list an attorney's previous employment.

    If you could have a problem with this attorney because he worked with some firm you had a bad experience with, or there are potential conflicts of interest, the best way to answer your question is simply to ask the attorney "...whether he was formerly associated with [or "partner", "member" or "of counsel to Dewey, Cheatem and Howe in Anywhere, USA?"

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