Opinion
xxxxxx-2019
08-15-2019
J.G., Plaintiff, v. R.G., Defendant.
Attorney for the plaintiff is Samuel J. Ferrara, Esq. (516) 328-2300 Attorney for the defendant is John A. Gemelli, Esq. (718) 261-2323
Attorney for the plaintiff is Samuel J. Ferrara, Esq. (516) 328-2300
Attorney for the defendant is John A. Gemelli, Esq. (718) 261-2323
Edmund M. Dane, J.
The following papers were read on this submission:
Plaintiff's Order to Show Cause, Affidavit, mation, Exhibits X
Defendant's Cross- Motion, Affidavit, Affirmation, Exhibits X
Plaintiff's Affidavit, Affirmation in Opposition, Exhibits X
Defendant's Affidavit in Reply, Exhibits X
PRELIMINARY STATEMENT
On July 8, 2019, each party commenced an action for divorce, the Plaintiff in Nassau County and the Defendant in Queens County. That same day, each party filed a family offense petition in Family Court, the Plaintiff in Nassau County and the Defendant in Queens County. Two days later, on July 10, 2019 at 2:00 p.m., each party filed an emergency Order to Show Cause seeking immediate relief, the Plaintiff in Nassau County Supreme Court, and the Defendant in Queens County Supreme Court. The Court is now called upon to determine the proper venue for the divorce action.
Plaintiff moves by Order to Show Cause dated July 10, 2019, for an Order (1) awarding temporary custody of the minor issue of the marriage, to wit: D.G., born xxxx, to the Plaintiff during the pendency of this action and pending further order of the Court and (2) granting Defendant visitation with the child during the pendency of this action pursuant to a temporary parenting time schedule. Upon the presentment of Plaintiff's emergency application, the Court ordered a temporary parenting time schedule.
Defendant moves by Notice of Cross-Motion dated July 19, 2019, for an Order (1) transferring the venue and place of trial of the underlying matrimonial action from Nassau County to Queens County pursuant to CPLR § 511, or in the alternative (2) transferring the venue and place of trial from Nassau County to Queens County, as Nassau County poses significant inconvenience to the Defendant and the subject child and to all relevant witnesses to this matter, and to the ends of justice pursuant to CPLR § 571.
On August 7, 2019, the Court heard oral argument on the motions.
BACKGROUND
The parties were married on XXXXXX, 2016. On July 8, 2019, both parties commenced their respective actions for divorce in adjoining counties. Plaintiff was first to file both a Summons and Verified Complaint and served Defendant that same day. There is one child of the marriage, D.G., born XXXX, 2018. Defendant works full time as a xxxxxx distributor and Plaintiff is a stay-at-home parent.
Plaintiff asserts that she has been the child's primary caretaker since his birth whereas Defendant rarely tends to the child's needs. She asserts that Defendant often screams at her, threatens violence, and smokes marijuana on almost a daily basis. Plaintiff states that Defendant installed monitoring devices in the marital residence and placed a tracking device on her vehicle without her consent. According to Plaintiff, on June 22, 2019, Defendant told her to move to her parent's house because he wanted a divorce. She states that following an incident with the Defendant on July 4, 2019, resulting in her calling the police, she decided to stay with her parents in East Meadow, Nassau County. Plaintiff asserts that on July 5, 2019, she and the child moved to Nassau County.
Defendant states that on July 5, 2019, Plaintiff informed him that she and the child were going to visit her parents for the day. He asserts that the "day visit" turned into the weekend and that by Monday, Plaintiff filed for divorce claiming Nassau County to be her residence. He argues that the parties' residence is in Whitestone, Queens, where they resided together throughout the marriage. Defendant claims that on July 4, 2019, Plaintiff threatened to have her father shoot him and that she has threatened to have him arrested. Defendant asserts that he has been actively involved in the child's life and that Plaintiff is extremely overprotective and possessive of the child. Defendant acknowledges that the parties have said horrible things to one another but states that it has never become physical or aggressive. Defendant argues that Plaintiff is forum shopping by commencing this action in Nassau County.
In opposition, Plaintiff asserts that she made the decision to preemptively move out of the marital residence on July 5, 2019, and into her parent's home in Nassau County after Defendant's threats. She attaches a United States Post Office mail forwarding change of address form dated July 1, 2019, and proof of an address change transaction with the Department of Motor Vehicles on July 15, 2019. Plaintiff argues that Defendant was served with the Summons and Complaint in this Nassau County action on July 8, 2019, whereas she was served with a Summons with Notice only in the Queens County action on July 12, 2019. Plaintiff argues that Nassau County is the convenient forum as she resides here and filed first. She further asserts that the child's pediatrician has offices in both Nassau and Queens County and because there are no equitable distribution issues in light of the prenuptial agreement, there is no need for the matter to be heard in Queens County. Plaintiff argues that in cases where a party is fleeing domestic abuse, residence may be established in only a brief time where there is a bona fide intent to stay in the new county. She therefore asserts that Nassau County is her residence.
In reply, Defendant insists that Plaintiff is forum shopping and that the prenuptial agreement has no bearing on venue. He argues that anyone can fill out a change of address form with the post office and that Plaintiff did not change her address with the Department of Motor Vehicles until one week after she commenced this divorce action.
DISCUSSION
In order to determine the proper venue, the Court is guided by the Civil Practice Law and Rules ("CPLR"). CPLR § 509 designates the place of trial as the County designated by the Plaintiff, unless the place of trial is changed to another county by order upon motion or by consent. Therefore, regardless of parties' residence, the Plaintiff had the right to commence an action for divorce in Nassau County and her action was properly filed. However, the Plaintiff's right to file in any county of her choosing is not absolute (see e.g. Goelz v. Keller , 2018 NY Slip Op 30934(U) [New York Co., 2018] ).
In the event the Defendant objects to the venue selected by Plaintiff, his remedy is set forth in CPLR § 511(b) :
"The defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter the defendant may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper."
Two days after commencement, on July 10, 2019, the Defendant served Plaintiff with a written demand that the matter proceed in Queens County. By affidavit dated July 15, 2019, Plaintiff affirmed that Nassau County is the proper venue based upon her establishing a residence as of July 5, 2019. Because Defendant's cross-motion was made within fifteen days of his demand for a change of venue, his application is timely ( CPLR § 511(b) ). Further, because Plaintiff affirmed Nassau County as the proper venue in response to Defendant's demand, Defendant's motion to change venue is properly brought in Nassau County ( CPLR § 511(b) ; Columbus Ave. Corp. v. Town of Hempstead , 85 AD3d 1038 [2nd Dept., 2011] ; King v. CSC Holdings, LLC , 123 AD3d 888 [2nd Dept., 2014] ).
Pursuant to CPLR § 503(a), "[e]xcept where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced..." Because the Defendant has timely challenged venue pursuant to CPLR § 511 on the ground that the place of trial selected by Plaintiff is improper under CPLR § 503(a), the Plaintiff's statutory right to file for divorce in any county of her choosing pursuant to CPLR § 509 may be defeated (see: Castaneda v. Castaneda , 36 Misc 3d 504 [New York Co., 2012] ). The Court must therefore consider whether one of the parties resided in Nassau County at the time the action commenced.
To consider a place his or her residence for venue purposes, he or she "must stay there for some time and have the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency" ( Katz v. Siroty , 62 AD2d 1011 [2nd Dept., 1978] ; see also: Deas v. Ahmed , 120 AD3d 750 [2nd Dept., 2014] ; Furth v. Elrac , 11 AD3d 509 [2nd Dept., 2004]. Residency for the purposes of venue must be determined at the time of the commencement of the action ( Mandelbaum v. Mandelbaum , 151 AD2d 727 [2nd Dept., 1989] ).
The undisputed facts are that both parties resided together with the minor child in Queens County throughout their marriage. It is further undisputed that the Plaintiff left the marital residence with the parties' child on Friday, July 5, 2019, for what she advised Defendant would be a visit with her parents, and commenced this action for divorce three days later. Although the Plaintiff has stated her intention to remain in Nassau County with some degree of permanency, her statement standing alone is insufficient to establish same ( Harley v. Miller , 295 AD2d 401 [2nd Dept., 2002] ).
As is established in the Second Department and articulated in Forbes v. Rubinovich , 94 AD3d 809 [2nd Dept., 2012], more than a conclusory statement of residency is required to overcome a motion for a change in venue :
In opposition to the motion, the plaintiff was required to establish through documentary evidence that he intended to retain Kings County as a residence for some length of time and with some degree of permanency (see Buziashvili v. Ryan , 264 AD2d 797, 789 [1999] ; Labissiere v. Roland , 231 AD2d 687 [1996] ; Mandelbaum v. Mandelbaum , 151 AD2d 727 [1989] ). The plaintiff's driver's license, which was issued after the commencement of the action, was irrelevant (see Buziashvili v. Ryan , 264 AD2d at 798[1999] ; Mandelbaum v. Mandelbaum , 151 AD2d 727 [1989] ; Siegfried v. Siegfried , 92 AD2d 916 [1983] ). Furthermore, aside from a conclusory statement contained in his affidavit that he resided at an address in Kings County prior to commencing this action, the plaintiff failed to present any other evidence sufficient to establish that he resided in Kings County with any degree of permanency at the time this action was commenced (see Harley v. Miller , 295 AD2d 401 [2002] ; cf. Ellis v. Wirshba , 18 AD3d 805 [2005] ; Schaefer v. Schwartz , 226 AD2d 619 [1996] ).
To support her claim of residency in Nassau County, Plaintiff offers a copy of an unstamped form signed by her titled "Official Mail Forwarding Change of Address Order," which purports to change her mailing address from Queens County to her parent's address in Nassau County as of July 1, 2019. This "evidence" of a change in her residency is inconsistent with the Plaintiff's sworn affidavits. When referring to the incident occurring on July 4, 2019, she states, in her July 10, 2019 affidavit: "I decided that day that Daniel and I would move to my parent's house in East Meadow while Defendant and I worked out the details of our separation and divorce." Further, in her affidavit in response to Defendant's demand to change venue dated July 15, 2019, she states that she established residence in Nassau County as of July 5, 2019. Accordingly, the Court will not give weight to the change of address form which predates the Plaintiff's expressed intent to relocate to Nassau County.
Plaintiff also attaches a print out of an online "Change of Address" transaction with the Department of Motor Vehicles dated July 15, 2019. Because this proof of residency was created after the commencement of this action, the Court may not consider it. Indicia of residence acquired after the action has commenced is irrelevant for the purposes of determining proper venue ( Mandelbaum v. Mandelbaum , 151 AD2d 727 [2nd Dept., 1989], Siegfried v. Siegfried , 92 AD2d 916 [2nd Dept., 1983] ; Santulli v. Santulli , 228 AD2d 247 [2nd Dept., 1996] ).
The Court has further reviewed the text messages between the parties, the intent or accuracy of which is undisputed. The Plaintiff first informs the Defendant by text message that she is spending the night at her parent's home on Friday, July 5, 2019. On Saturday, July 6, 2019, she sends him a text message informing him that she will be staying there for the weekend. Then, on Sunday, July 7, 2019, one day prior to commencement, Plaintiff advises Defendant that she and the child will be "staying" with her parents, without an indication of when, or if, she would be returning to the marital residence.
According to Plaintiff, there was a prior incident between the parties in December, 2018, which resulted in her and the child leaving the marital residence to stay with her parents for two days before returning to the marital home. Under all of the facts and circumstances of this case, the Court cannot conclude that the Plaintiff spending the weekend with her parents following an incident with the Defendant on July 4, 2019, is sufficient to establish residency in Nassau County.
The Court acknowledges the existence of mutual temporary "refrain from" orders of protection and an order directing Defendant to stay away from the Plaintiff if under the influence of illegal drugs or alcohol. The Court does not take allegations of domestic violence lightly and makes no findings with respect to same or the need for Plaintiff to vacate the marital residence for her or the child's safety. In any event, the Court does not find that litigating the issues of this divorce action in neighboring Queens County imposes an unreasonable hardship on the Plaintiff should she choose to remain in Nassau County.
For all of the reasons set forth herein, Defendant's motion at branch (1) is GRANTED , and it is hereby
ORDERED, that the Defendant shall serve a copy of this Order upon the Clerk of the Supreme Court, County of Nassau within three (3) business days of the Order; and it is further ORDERED that upon receipt of this Order, the Clerk of the Supreme Court, County of Nassau, shall immediately transfer the entire file for the divorce action pending herein bearing Index Number xxxxxx-2019 to the Clerk of the Supreme Court, Queens County to be consolidated with the divorce action pending there.
In light of the above, branch (2) of Defendant's motion is MOOT.
Because the issues of this action will be heard before a Justice of the Supreme Court, Queens County, Plaintiff's motion is referred to the assigned Justice in the Supreme Court, Queens County, for determination. In the meantime, it is
ORDERED, that pending further order of the Court, the temporary parenting time order of this Court dated July 10, 2019, shall be continued.
All other requested relief, not specifically addressed herein, is hereby DENIED.
This constitutes the Decision and Order of this Court.