Opinion
Index No. 53485/18
05-14-2020
Calogero MANNINO, Plaintiff, v. Olimpia CAROSO, Defendant.
The following papers numbered 1 to 8 herein : Papers Numbered
Notice of Motion/Order to Show Cause
Affidavits (Affirmations) Annexed1-3, 4-5
Opposing Affidavits (Affirmations)6, 7
Reply Affidavits (Affirmations)8
Other Papers
Upon the foregoing papers in the instant divorce action, plaintiff Cologero Mannino (plaintiff) moves, by order to show cause, for an order granting plaintiff permission to appear in this matter either telephonically or by video conferencing. Alternatively, plaintiff moves for an order appointing his brother, Salvatore Mannino, as guardian ad litem pursuant to CPLR Article 12. Defendant Olimpia Caroso (defendant) cross-moves for an order dismissing this action pursuant to CPLR 327 (a).
Background Facts and Procedural History
On January 2, 1977, the parties were married in Italy. Thereafter, the parties resided together in their marital residence located at 8635 14th Avenue in Brooklyn, New York. Three children were born of the marriage, all of whom were emancipated prior to the commencement of this action. In 1984, plaintiff was convicted of various crimes in the United States and sentenced to 44 months in prison. On April 30, 1992, plaintiff, who is an Italian citizen, was deported to Italy and has remained there to the present day. According to plaintiff, given his prior criminal conviction and deportation, he is precluded from returning to the United States. Since the marriage, defendant has continually resided at the marital residence in Brooklyn. Plaintiff and defendant have had no contact since plaintiff's deportation, some 28 years ago.
On July 16, 2018, plaintiff commenced the instant action seeking a judgment of divorce under Domestic Relations Law § 170 (7) based upon the irretrievable breakdown of the marriage for a period of at least six months. The instant motions are now before the court.
Motion to Dismiss Under CPLR 327 (a)
As a threshold matter, the court must address defendant's cross motion to dismiss under CPLR 327 (a). In support of her cross motion, defendant initially contends that, inasmuch as the parties were married in Italy and Domestic Relations Law § 236 (B) (2) and (5) permit a party to obtain certain forms of judicial intervention in a New York action following a foreign judgment of divorce, plaintiff must first obtain a judgment of divorce in Italy before seeking relief in this court.
Alternatively, defendant maintains that, even if this court has jurisdiction in this matter, inasmuch as the parties were married in Italy in 1977, Italy is also available to plaintiff as an alternative forum to bring a divorce action. Defendant further contends that an Italian court is the most appropriate forum to adjudicate the divorce since the burden imposed on both herself and the court in adjudicating this matter in Brooklyn would be excessive. In support of this contention, defendant notes that, although she can travel to Italy to appear before an Italian court, the plaintiff is precluded from entering the United States. Thus, any conferencing and testimony offered by plaintiff in the instant Brooklyn action would require the use of telephonic and video technology. According to defendant, this would deprive both herself and the court of the opportunity to properly evaluate the plaintiff's credibility as a witness. In addition, defendant notes that telephonic/video conferencing is prone to technological malfunctions and other problems that would impede the court. Defendant also maintains that the six-hour time difference between New York and Italy would further complicate matters and place additional burdens on the court. Defendant further contends that discovery in this matter would be unduly burdensome and expensive as it would require the translation of documents from Italian to English and it would be difficult for her to subpoena Italian banks if plaintiff fails to disclose bank accounts and/or property owned by him since he moved to Italy in 1992.
In opposition to defendant's cross motion, plaintiff maintains that there is no merit to defendant's argument that he must obtain an Italian divorce decree prior to seeking relief from this court. In particular, plaintiff argues that this court clearly has jurisdiction in this matter given the fact that defendant has resided in Kings County for nearly four decades prior to the commencement of this action. Plaintiff further contends the only real issue in this matter concerns the equitable distribution of the marital residence in Brooklyn and the Supreme Court of the State of New York is the only forum where this can be adjudicated. Thus, plaintiff contends that any alleged hardship or prejudice to the defense and court cannot be avoided inasmuch as New York is the only forum where the key issue in the case can be litigated. In any event, plaintiff avers that there is no prejudice or hardship to the defense because, with the exception of himself, all of the witnesses necessary to adjudicate the equitable distribution of the marital residence reside in Kings County.
Further, plaintiff contends that, inasmuch as he is legally barred from entering the United States, relevant rules, statutes, and case law permit him to appear via video. At the same time, plaintiff argues that allowing him to appear via video will not deprive the trier of fact the opportunity to evaluate witness credibility as the video technology used today is of high definition quality and is frequently used in Federal and State courts throughout the country when physical appearance cannot occur. Finally, plaintiff maintains that any issues regarding the time zone difference is his problem alone and, if he cannot appear at an ordered time, the court can dismiss the case on default as it could in any case involving physical appearances.
As an initial matter, the court finds no merit to defendant's contention that, inasmuch as Domestic Relations Law § 236 (B) (2) and (5) permit parties to obtain certain forms of judicial intervention in a divorce action following a foreign judgment of divorce, it necessary follows that, because the parties were married in Italy, plaintiff must obtain an Italian divorce decree prior to seeking any relief in this court. In fact, New York courts routinely preside over divorce actions where the parties were married in foreign countries so long as at least one of the residency requirements set forth in Domestic Relations Law § 230 has been satisfied. Here, it is undisputed that defendant resided in New York for more than two years prior to the commencement of this action. Accordingly, plaintiff was entitled to commence the instant divorce action in New York under Domestic Relations Law § 230 (5) (Bourbon v. Bourbon , 259 AD2d 270 [1999] ).
Turning to the issue of whether or not this case should be dismissed under the doctrine of forum non conveniens as codified in CPLR 327 (a), it is well settled that "New York courts are not compelled to retain jurisdiction over any case which does not have a substantial nexus to New York" ( Turay v. Beam Bros. Trucking, Inc. , 61 AD3d 964, 965 [2009] ). A party moving to dismiss an action under CPLR 327 has the burden of demonstrating that relevant private and/or public interest factors weigh against a New York court's acceptance of the litigation ( Islamic Republic of Iran v. Pahlavi , 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985] ). "Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon New York courts" ( Turay , 61 AD3d at 966, citing Smolik v. Turner Constr. Co. , 48 AD3d 452, 454 [2008] ; Kefalas v. Kontogiannis , 44 AD3d 624, 625 [2007] ; Brinson v. Chrysler Fin. , 43 AD3d 846, 848 [2007] ; Stravalle v. Land Cargo, Inc. , 39 AD3d 735, 736 [2007] ). "No one single factor controls" ( Turay , 61 AD3d at 966 [citations omitted] ). However, "the availability of another suitable forum is a most important factor to be considered in ruling on a motion to dismiss" ( Islamic Republic of Iran , 62 NY2d at 481 ). "A court's determination will not be disturbed on appeal unless that court failed to properly consider all the relevant factors or improvidently exercised its discretion in deciding the motion" ( Turay , 61 AD3d at 966 [citations omitted] ).
Here, defendant has failed to meet her burden of demonstrating that private and public interest factors weigh against this court's acceptance of the litigation. In this regard, the court initially notes that, unlike in cases where dismissal under CPLR 327 is appropriate, there is clearly a substantial nexus between this litigation and New York. The defendant has been a continuous resident of Kings County for over 40 years. Further, between 1977 and plaintiff's imprisonment in 1984, the parties resided together in Brooklyn as a married couple and raised their children in Brooklyn. In addition, the marital residence in which the parties resided together prior to separation, and in which defendant continues to reside, is located in Brooklyn. Moreover, the relevant factors weigh in favor of the court retaining this case. Specifically, as previously noted, defendant is a long -time resident of Kings County and the marital home is located on Brooklyn. Also, although plaintiff could presumably obtain a foreign divorce decree in Italy, New York is the only forum available to plaintiff to seek equitable distribution of the marital home. In addition, with the exception of plaintiff, all known witnesses are located in New York, as are the ownership and financial records pertaining to the marital residence. While it is true that, given plaintiff's claim that he is legally barred from entering the United States, plaintiff may have to appear and testify in this matter via video, courts have allowed video testimony under similar circumstances upon a proper evidentiary showing. Moreover, defendant's speculative claims about potential technological problems is an insufficient basis to warrant dismissal of this action under CPLR 327 (a). Finally, while there could potentially be discovery issues with respect to marital income and property in Italy, defendant may seek appropriate remedies from the court should plaintiff fail to cooperate in the discovery process or otherwise attempt to conceal assets and/or income. Similarly, to the extent that the discovery of plaintiff's assets and income in Italy results in added expenses such as local counsel, investigators and translators defendant may seek to have plaintiff pay these expenses if appropriate.
Accordingly, defendant's cross motion to dismiss the action pursuant to CPLR 327 is denied.
Plaintiff's Motion for Permission to Appear Via Video
Plaintiff moves for an order allowing him to appear and testify in this action via video. Alternatively, plaintiff moves for an order appointing his brother, Salvatore Mannino, as guardian ad litem pursuant to CPLR Article 12 to represent his interests in this matter. In support of this motion, plaintiff submits his own affidavit in which he states that he is precluded from entering the United States due to his past criminal conviction and deportation.Plaintiff further points to relevant case law in which courts have permitted witnesses to testify at depositions and trials via video technology pursuant to CPLR 3103 (a) and CPLR 3117 (a) (3) upon an evidentiary showing that requiring them to testify in person would create an undue hardship. According to plaintiff, requiring him to appear and testify in person would clearly create an undue hardship inasmuch as he is barred from entering the United States. In addition, plaintiff maintains that, to the extent that 22 NYCRR 202.16 (f) requires that parties in matrimonial actions physically appear for preliminary conferences, 22 NYCRR 202.1 allows courts to waive compliance with this requirement "for good cause shown." Plaintiff argues that, since he is precluded from entering the United States, the court may waive any requirement that he physically appear for a preliminary conference and permit him to attend the conference via video.
Alternatively, plaintiff seeks an order appointing his brother as guardian ad litem to represent him in this case. In support of this application, plaintiff maintains a guardian ad litem may be appointed by the court at any stage of an action in which an adult is incapable of adequately prosecuting or defending his or her rights. According to plaintiff, if the court denies his request to appear in this matter via video, he will be incapable of adequately prosecuting this action. Under the circumstances, plaintiff maintains that the court should appoint his brother as guardian ad litem to represent his interests and prosecute this divorce action on his behalf.
In opposition to plaintiff's motion, defendant argues that 22 NYCRR 202.16 (f) precludes parties from testifying electronically in divorce actions. Defendant further contends that plaintiff has not demonstrated that requiring him to testify in person will create an "undue" hardship inasmuch as it is plaintiff's own criminal conduct that has precluded him from entering the United States. Further, defendant argues that she will be prejudiced if plaintiff is allowed to testify via video inasmuch as neither she nor the court will be able to properly evaluate plaintiff's credibility. Finally, defendant argues that there is no authority for the proposition that the court may appoint a guardian ad litem where a party cannot appear in an action due to travel restrictions. Rather, defendant maintains that the appointment of a guardian ad litem is only appropriate when a party is physically or mentally incapacitated, which is not the case with plaintiff.
"As a general rule, a non-resident plaintiff who has invoked the jurisdiction of New York State by bringing suit in its courts must stand ready to be deposed in New York unless it is shown that undue hardship would result" ( Farrakhan v. N.Y.P. Holdings , 226 AD2d 133, 135-136 [1996] ). Accordingly, courts will issued protective orders under CPLR 3103 (a) to allow deposition witnesses to testify via video when it is shown that traveling to the United States would be impossible or unduly burdensome ( Feng Wang v. A & W Travel, Inc. , 130 AD3d 974, 976-977 [2015] ; Gabriel v. Johnson's L.P. Gas Serv., Inc. , 98 AD3d 168 [2012] amended 104 AD3d 1262 [2012] ; Yu Hui Chen v. Chen Li Zhi , 81 AD3d 818, 818-819 [2011] ; American Bank Note Corp. v. Daniele , 81 AD3d 500, 2011 ). For example, in Yu Hui Chen , the plaintiff was arrested by United States Immigration and Customs Enforcement officers and deported to China before he could testify at his Workers' Compensation Board hearing or at a deposition. Based upon a showing that he would be precluded from obtaining a visa to enter the United States for 10 years, the Appellate Division, Second Department held that the lower court improvidently exercised its discretion in denying the plaintiff's motion for a protective order pursuant to CPLR 3103 (a) directing that his deposition be conducted by remote electronic means (see Gabriel , 98 AD3d at 176 ). Similarly, in Feng Wang and Gabriel , the Appellate Division ruled that the plaintiffs were entitled to a protective order pursuant to CPLR 3117 (a) (3) for leave to employ a video transcription of their deposition testimony at trial in lieu of appearing at trial to give testimony inasmuch as the plaintiffs met the criteria set forth in CPLR 3117 (a) (3) (ii), (iv) and (v) ( Feng Wang , 130 AD3d at 977 ; Gabriel , 98 AD3d at 179 ).
Here, upon a proper showing that he is barred from entering the United States, plaintiff would be entitled to protective orders allowing him to testify at his deposition via video and to employ a video transcription of his deposition testimony at trial in lieu of appearing at trial. In this regard, the court finds no merit to defendant's argument that plaintiff is precluded from testifying via video by 22 NYCRR 202.16 (f). To the extent that this rule requires that plaintiff appear for a preliminary conference in person, 22 NYCRR 202.1 allows for the waiver of this requirement for good cause shown. The Court, where it is not possible to have a personal appearance, has in the past allowed parties to appear via telephone or video for a preliminary conference. Here, plaintiff's inability to enter the United States would constitute good cause for not appearing in person. The court also finds no merit to defendant's argument that plaintiff cannot demonstrate he would suffer "undue" hardship if required to testify in person inasmuch as his inability to enter the United States is due to his own prior criminal conviction. In this regard, as noted above, in Yu Hui Chen the plaintiff was arrested, deported to China, and legally barred from entering the United States for 10 years. Similarly, in American Bank Note Corp. , there was a question as to whether the witness could lawfully leave Argentina because of charges plaintiffs filed against him in that country ( American Bank Note Corp. , 81 AD3d at 501-502 ). Thus, the fact that a party's prior unlawful conduct may have played a role in his or her inability to enter the United States does preclude a finding that requiring them to return to the United States to testify would create an undue hardship.
Under the circumstances, plaintiff's motion for an order permitting him to testify via video in this action is granted to the extent that, pursuant to CPLR 3103 (a), plaintiff's deposition is to be conducted via video. Further, pursuant to CPLR 3117 (a) (3), plaintiff is granted leave to employ a video transcription of his deposition testimony at trial in lieu of appearing at trial. Testimony at the trial in chief may also be via video as long as the Plaintiff makes arrangements for the video link, via skype for business or any other approved platform by the Court System in accordance with protocols in effect at that time including but not limited to a prohibition on recordings or coaching of a witness from a remote location. It is clear to the Court that video testimony while previously only granted under extraordinary circumstance may now become more commonplace depending on the circumstance of each case. Any issues regarding time zones must be resolved in favor of the defendant and the Court.
Although it appears highly likely that plaintiff would be refused entry into the United States given his prior criminal conviction and deportation, plaintiff has failed to allege or otherwise submit proof that he as actually attempted to obtain permission to enter the United States. Accordingly, the granting of plaintiff's motion is conditioned upon him submitting to the court on notice
In light of the court's ruling, plaintiff's alternative application for the appointment of a guardian ad litem has been rendered moot. In any event, the court finds that the appointment of a guardian ad litem would be inappropriate in this case inasmuch as plaintiff's inability to enter the United States does not render him an incapacitated person so as to justify the appointment of a guardian ad litem.
Summary
In summary, defendant's cross motion to dismiss plaintiff's action pursuant to CPLR 327 is denied. Plaintiff's motion for an order permitting him to testify via video in this action is conditionally granted.
This constitutes the decision and order of the court. The parties are requested to consent to this matter being converted to the NYSCEF e filing system. Said stipulation should be filed thorough the EDDS process that was established originally to allow access to the Court during this pandemic emergency.
The matter is set down for a preliminary conference on June 18, 2020 at 9:30 A.M. Counsel shall contact chambers via e-mail at Sbonanno@nycourts.gov for instructions as to how the preliminary conference will occur. The forms for the preliminary conference should, where practicable, be filled out prior to the appearance and can be found on the courts website and should be submitted via e-mail by June 16, 2020.