Opinion
06-203062.
Decided on February 26, 2008.
This motion by the defendant for an order permitting him to present testimony from three witnesses by means of video conferencing their testimony in live time from India to the courtroom of the undersigned justice in Mineola, New York presents an issue of first impression.
The plaintiff commenced a prior action against the defendant seeking a judgment of divorce and granting ancillary financial relief on or about March 16, 2006. Her verified complaint alleged that the parties were married by arrangement in a Hindu ceremony in Kothareddy Palem India "in or about 1955." The parties have three emancipated children. A fourth child is deceased. On March 18, 2006, a process server, retained by plaintiff's counsel, served a summons and verified complaint in said prior action, and an order to show cause, dated March 17, 2006, seeking a order enjoining the defendant from making any disposition of assets, on a male of Indian descent. Thereafter, the defendant moved for an order dismissing the complaint on the ground of lack of personal jurisdiction, stating that the plaintiff's process server mistakenly served the summons and complaint on his brother-in-law instead of on the defendant.
The order to show cause dated March 17, 2006, contained an ex parte order prohibiting the defendant from making any disposition of assets except in the ordinary course of business or living. Nevertheless, in March 2006, the defendant transferred over $2,250,000.00 in liquid assets to C R the woman he contends is his wife. He also transferred his interest in the marital residence to her in March 2006, but his interest was conveyed back to him upon his counsel's advice. In April 2006, he contracted to sell real property in Long Beach and actually sold other real property he owned in Long Beach.
The prior action was dismissed on the record in open court, after a traverse hearing, on October 24, 2006. The plaintiff commenced the above captioned action on or about October 25, 2006, and an order to show cause, granting an interim restraint on the defendant's assets, was signed on October 26, 2006, in the instant action, after notice was afforded to the defendant of the application for an ex parte restraint and a conference was conducted with counsel for both parties. Pursuant to said order to show cause, the defendant was further directed to produce a net worth affidavit, for an in camera inspection, on November 3, 2006.
The plaintiff was unable to effectuate service of the summons and verified complaint in the instant action, and order to show cause dated October 26, 2006 until October 28, 2006. The plaintiff has submitted an affidavit from a process server in support of her contention that the defendant evaded service of process on October 26, 2006 and October 27, 2006. On October 26, 2006, the defendant transferred his interest in the marital residence, his interest in S Realty, and his interest in T Properties to C R and he liquidated or transferred over $500,000.00 in investment accounts.
Pursuant to an order dated November 8, 2006, the Court held that the October 26, 2006 transfers appeared to have rendered the defendant insolvent as his affidavit of net worth stated that he owned assets worth approximately $3,700,000.00 ($3,400,000.00 in retirement assets) and owed liabilities of over eleven million dollars. The order dated November 8, 2006, further directed as follows, denoted in bold print:
ORDERED, that the temporary restraining order set forth in the order to show cause dated October 26, 2006 is superceded by the following temporary order: it is hereby
ORDERED, that pending the determination of the order to show cause dated October 26, 2006, the defendant is enjoined and restrained from selling, transferring, encumbering, hypothecating, dissipating, secreting or otherwise disposing of any assets held in his name or his name and the name of a non-party, except that he may take the required minimum distributions from his retirement accounts as may be mandated by applicable law.
Pursuant to a motion submitted on January 23, 2007, the plaintiff sought an order restraining the defendant from making any disposition of assets during the pendency of this action except in the ordinary course of business. The defendant moved for an order 1) pursuant to CPLR 327(a) dismissing the action on the ground of that New York State is an inconvenient forum; 2) dismissing the action on the ground that at the time the action was commenced there was another action pending; and 3) in the alternative, granting him a lengthy continuance after the completion of the plaintiff's case to enable him to produce witnesses who reside in India.
The defendant vigorously opposed the plaintiff's application for an order restraining his further disposition of assets. He denied he was ever married to the plaintiff. Further, he advised the Court that in January 2005, long before the commencement of the prior action herein, he made transfers to C R of his 50% interest in five limited liabilities corporations that apparently own various real properties. He stated that the transfers of January 2005, as well as those made in 2006, were all part of an estate plan, and were additionally intended to insulate his assets from any possible malpractice judgment.
The plaintiff contended that the transfers made in 2006 were intended solely to defeat her claim to an equitable share of the defendant's assets.
Said motions were decided by a decision and order dated January 29, 2007, as follows, denoted in bold print:
According to a passport issued by the Republic of Indian on April 2, 1998, the plaintiff was born on September 9, 1942, and she is 64 years old. The defendant states that he is 72 years old. The plaintiff is residing in Michigan with the parties' daughter. The defendant is a urological surgeon residing in New York. The defendant has resided in the United States since 1966. The plaintiff came to the United States in 1994 with the help of the parties' daughter, after the daughter established permanent resident status in this country. The plaintiff states that the defendant stopped supporting her and the children approximately 30 years ago. She lives on social security benefits of $360.00 a month. Her only asset is $1000.00 on deposit in a credit union account.
In an affidavit submitted by the defendant in the prior action, sworn to on April 12, 2006, he stated that he never participated in a civil or religious ceremony with the plaintiff at any time. He noted that the plaintiff's complaint in said prior action did not even set forth the date of the parties' purported marriage except to state it occurred in or about 1955. The defendant stated that he and the plaintiff were born and raised in Kottareddy, India; that they became romantically involved in or about 1953; that the relationship produced four children; that on May 23, 1966, he married C R in a Hindu ceremony in his home town in India; and that there is one emancipated child of this marriage. He provided a copy of a document, sworn to on May 23, 1966, that he states is his marriage certificate. He noted that he could not have married in his home town in 1966 if he had previously married in his home town in 1955. He stated that he has supported the children he had with the plaintiff, even through medical school attended by two of the children, by channeling funds through his uncle. He further stated that he allowed "people" to believe the parties were married to protect the plaintiff from dishonor. He stated without contradiction by plaintiff that the parties have had no correspondence, communication or interaction in more than 40 years. In response to defendant's affidavit, the plaintiff stated that the parties were married in a traditional Hindu ceremony attended by 250 guests; that the ceremony took place not in 1955, but in the early 1950s before the defendant attended medical school. In addition, in support of her claim that the parties were married, the plaintiff presented the following documents: 26 affidavits, including some from the defendant's relatives and village elders, who attended the wedding; the affidavit of the assistant priest who presided at the wedding; letters authored by the defendant to the parties' children addressing his need for divorce papers from the plaintiff; copies of expired passports that name the defendant as her spouse; a bank passbook, for an account she claims was opened by the defendant in India, naming her as his wife; property documents she contends identify the parties as a married couple; and a document entitled "Marriage Certificate" sworn to by a priest on May 16, 2006. In said certificate, the priest states that he is 71 years old; that he recalls marrying the parties herein and also recalls marrying their daughter 30 years later. Further, the plaintiff submitted an affidavit, by an attorney and former judge, she contends is an expert in Indian matrimonial law. The affidavit states unequivocally that the parties entered into a marriage that would be recognized under Indian law. The defendant replied that the priest who signed the "Marriage Certificate," presented by the plaintiff, perpetrated a fraud, as he was not a priest, and did not reside in the parties' village until 1961; that many of the affidavits produced by the plaintiff were signed by illiterate villagers who did not understand the contents of the affidavits; and that the parties' son lied in his translation of a letter written by the defendant. The defendant points out that the plaintiff was only 10 years old in 1952 and she did not reach the age of permissible marriage in India until 1957. (The court notes that the defendant's affidavit in support of his cross motion states that he became romantically involved with the plaintiff in 1953. She would have been 11 years old at that time). The defendant produced an affidavit by the "assistant priest" recanting his prior affidavit, together with affidavits of 32 villagers and 15 other residents of India. The plaintiff thereafter countered with further affidavits, plaintiff contends demonstrate that the defendant obtained the affidavits he submitted through intimidation, fraud, and bribery. A bifurcated trial on the issue as to whether or not the parties were married in India was calendared by this Court to commence on February 27, 2007, and thereafter adjourned at the defendant's request to April 17, 2007. The defendant now moves for the dismissal of the instant action on the ground that the potential witnesses with knowledge relevant to the parties' marital status reside in India and do not speak English. The defendant points out that any relevant documents will not be in English. He notes the advanced age of the witnesses, the cost of transporting them to the United States for trial, and the inability of this Court to subpoena witnesses or the production of documents from India. The defendant agrees to submit himself to the jurisdiction of an Indian Court and his counsel suggests that this Court could "refer" the issue of the validity of plaintiff's claimed marriage to the Indian courts while retaining jurisdiction over the pending divorce action. The plaintiff points out the nexus between the State of New York and the instant litigation. She further points out that neither party has resided in India for the past 12 years; that the defendant is a resident of New York State; and that he owns substantial assets located in this State to which she claims entitlement to an equitable share. In addition, plaintiff states that the parties' children will be witnesses on her behalf. The relevant law is well settled. "The doctrine of forum non conveniens permits a court to dismiss an action when, although it may have jurisdiction over a claim, the court determines that in the interest of substantial justice the action should be heard in another forum' (CPLR 327)'" ( Markov v Markov , 274 AD2d 870, quoting National Bank Trust Co. v Banco De Vizcaya , 72 NY2d 1005, 1007). In exercising its discretion in determining a motion to dismiss pursuant to CPLR 327, a court should consider various factors including the potential hardship to the defendant, the availability or unavailability of an alternative forum, the residency of the parties, the potential hardship to witnesses, the situs of the underlying action, and the burden imposed on the New York State court ( see, Islamic Republic v Pahlavi , 62 NY2d 474, 479, cert denied 469 US 1108; Banco Ambrosiano v Artoc Bank Trust , 62 NY2d 65, 73; Stamm v Deloitte v Touche , 202 AD2d 413). The Court is required to balance these factors in light of the facts and circumstances of the case ( see, National Bank Trust Co. v Banco De Vizcaya , supra). The burden rests on a defendant seeking dismissal of an action pursuant to CPLR 327 to demonstrate that private or public interests militate against litigation in the forum selected by the plaintiff ( see, Stamm v Deloitte v Touche, supra ). Unless the aforesaid factors weigh heavily in the defendant's favor, the plaintiff's choice of forum should not be rejected ( see, Waterways, Ltd. V Barclays Bank , 174 AD2d 324; Markov v Markov, supra ).
In the case at bar, the defendant does not suggest that the State of New York lacks sufficient nexus to adjudicate all financial issues that may arise ancillary to the instant action for divorce ( see, Bourbon v Bourbon , 259 AD2d 720; Markov v Markov, supra ;), as the defendant resides in this State and his extensive assets are located here. Rather, defendant's counsel proposes only that this Court "transfer" the issue of the validity of the parties' purported marriage to India. As courts of this State lack authority to transfer actions pursuant to CPLR 327, the defendant's application is deemed a motion to stay the instant action pending the commencement and determination of an action in India to declare the validity or invalidity of the plaintiff's claim that she and the defendant are husband and wife. This Court has found ample precedent wherein courts in the United States have determined the validity or invalidity of foreign marriage ceremonies ( see, e.g. Amsellem v Amsellem , 189 Misc 2d 27 [upholding religious ceremony conducted in France]; Matter of Estate of Huyot , 169 Misc 2d 805 [holding claimant was a concubine and not a wife according to French law]; Singh v Singh , 67 Misc 2d 878 [ invalidating an arranged marriage in India]; In re White , 129 Misc 835 [upholding ceremonial Canadian marriage]; Xiong ex rel Edmondson v Xiong , 255 Wisc2d 693, 648 NW2d 900 [ upholding marriage in Laos]; Farah v Farah , 16 Va App 329, 429 SE2d 626 [invalidating Muslim marriage ceremony conducted in England]). In fact, the undersigned Justice has heretofore rendered an unpublished decision dismissing a claim that the parties had been married by virtue of a tribal ceremony in Nigeria. Upon consideration of the relevant factors, the Court declines, in its discretion, to dismiss or stay the instant action on the ground of forum non conveniens. In making this determination, the Court has considered the defendant's residence in New York, his residence in the United States since 1966; his vast wealth enabling him to produce witnesses in this State, the plaintiff's lack of income and assets; the plaintiff's residency in the United States since 1994; and this State's nexus to the financial issues ancillary to an action for divorce. The Court also notes that the defendant's moving papers contained only his present counsel's unsupported opinion that the Republic of India would assume jurisdiction over a litigation relating to the validity or nullity of the parties' marriage. The expert affidavit included, in the first instance, in the defendant's reply papers, will not be considered by the Court, as the plaintiff had no opportunity to counter same, nor challenge the expertise of the declarant. Further, even if said affidavit had been considered, it opines that an Indian Court would adjudicate a divorce case between non-resident Hindus, but it does not specifically address the viability of an action to declare the validity or nullity of a marriage. Further, with regard to the cost incident to the production of witnesses, the Court notes that the defendant's expert resides in Canada. The Court acknowledges the expense that will be incurred transporting witnesses from India to the United States, but the Court doesn't characterize such a trip, as necessarily constituting a hardship for such witnesses, and such expense must be balanced against all the other factors referred to herein above, as well as the cost to the parties of traveling to India and remaining there during the pendency of proceedings in that country. In view of the many affidavits produced by both parties incident to motion practice in the prior action, the Court finds the defendant's complaint as to the inability to subpoena witnesses to be specious. Further, the Court admonishes the parties that it will not entertain inappropriately cumulative testimony. The plaintiff is not expected to produce all 250 purported wedding guests, nor is the defendant expected to produce every villager with knowledge as to the date the officiant in question arrived in town and began to perform wedding ceremonies. Finally, the Court has considered the defendant's recent transfers of substantial assets (and the tax consequences that may ensue in the event the parties' marriage is sustained). The dismissal of the instant action would clearly afford the defendant the opportunity to accomplish further transfers, prejudicing the plaintiff's right to an equitable award of marital assets should the parties' marriage be declared valid by the Indian court. As the prior action was dismissed on October 24, 2006 and the instant action commenced on or about October 25, 2006, the portion of the defendant's motion for an order dismissing the instant action on the ground that there is another action pending for the same relief is denied. The defendant's application for an order granting him a four month continuance at the conclusion of the plaintiff's case so that he will be able to secure witnesses and prepare a defense after he hears plaintiff's case is denied. The defendant's counsel has recognized that even if the plaintiff produces only one or two witnesses, her case will likely withstand a motion to dismiss and the defendant will be obligated to present a defense. In view of the serious and conflicting allegations in this case of witness intimidation and bribery, the Court finds that the proposed continuance would afford the defendant an undue advantage. In view of all of the foregoing, the defendant's motion is denied in all respects. As set forth herein above, it appears that the defendant has denuded himself of all his assets except his retirement assets and has rendered himself insolvent. Accordingly, the plaintiff's motion for a temporary restraining order is granted. The temporary restraining order dated November 8, 2006 is modified to the extent that the defendant is ordered to deposit all mandatory withdrawals from his retirement assets into his attorney's escrow account pending further order. Further, Merrill Lynch, Citigroup, and Sanford C. Bernstein C Purchase Money Plan are hereby restrained from permitting the defendant, his attorneys, agents or assigns from making any withdrawal from accounts on deposit in his name alone or jointly with another, except for mandatory withdrawals. The defendant's attorney shall serve a copy of this order upon the aforesaid financial institutions accompanied by account numbers pursuant to CPLR 311 within 3 business days of the date of this order and shall provide proof to the plaintiff that such service has been effectuated within 10 days of the date of this order. This constitutes the decision and order of the Court. The parties and their respective attorneys shall appear for trial on April 17, 2007 at 9:30a.m. on the limited issue of whether or not the parties were married in India.
Said trial commenced on July 9, 2007 and continued on the following dates, to wit: July 10, 11, and 12, 2007; October 2,3,4,10, and 11, 2007; November 27, 28, and 29, 2007; and January 28, 29 and 31, 2008. The defendant called seven witnesses. Five of these witnesses were flown to New York from India by the defendant. Six of the witnesses testified that they had various relationships with the defendant in India during a relevant time period and did not attend any wedding ceremony between the plaintiff and the defendant.
The defendant seeks leave to present testimony, of similar vein, from three additional witnesses through the use of video conferencing technology that will transmit said testimony in real time from India to the courtroom of the undersigned justice in Mineola, New York. The intervenor joins in the application. The plaintiff vigorously opposes same.
In support of the application, the defendant states that the three witnesses were unable to obtain visas to travel to the United States; that they possess material and relevant testimony; and that the Court will be able to assess demeanor and credibility through the electronic video transmission of the testimony.
The plaintiff contends that the proposed use of testimony through video transmission will be highly prejudicial. In opposing the application, the plaintiff points out the following: one of plaintiff's witnesses testified at the trial that he was offered a bribe equal to six months salary by the defendant to deny he had attended a wedding ceremony between the plaintiff and defendant; the decision and order dated January 29, 2007 (set forth at length herein above) addresses claims of witness bribery and intimidation; the defendant had ample time to conduct pretrial depositions in India of the proposed witnesses and failed to do so; and the defendant has not offered any explanation as to why the three witnesses in issue were denied visas. The plaintiff asserts that in view of the sworn testimony that the defendant himself attempted to bribe one of her witnesses, it is imperative in this case that she be afforded the right to confront witnesses in the courtroom in Mineola during their testimony. The plaintiff further contends that the proposed testimony will be cumulative. Her attorney notes that the decision and order dated January 29, 2007 admonished counsel not to present cumulative testimony. Finally, the plaintiff advises the Court that she has located more than a dozen additional witnesses in India with material and relevant testimony who would testify on her behalf by video conferencing if same were permitted by the Court.
Based upon all of the foregoing, the motion is decided as follows:
Article 1, section 6 of the New York State Constitution affords both civil and criminal litigants the right to be present in court and to confront witnesses ( see, Matter of Dean L., 109 AD2d 87). The right of confrontation is intended to ensure the reliability of testimony ( see, United States v Baker, 45 F3d 837, cert denied 116 S Ct 194). In simplest terms, the enactment of a constitutional right of confrontation is an acknowledgment that it's generally more difficult for a witness to lie about a party when the witness is sitting in a room face to face with the party.
The right of confrontation, while fundamental, is not absolute, and may be abrogated where the right is outweighed by public policy concerns and or special circumstances ( see, United States v Baker, supra). Vulnerable child witnesses are permitted to testify by means of closed circuit television in both New York State and federal venues ( see, Maryland v Craig, 497 US 836; In re Q.-L.H., 27 AD3d 738; Matter of Donna K., 132 AD2d 1004; In re Noel, ___ Misc 3d ___, 2008 WL 239940; FCA 343.1[4]; CPL 65.10). Testimony by means of teleconferencing from a remote location was permitted in a federal criminal trial where two criteria were met, to wit: the defendant had been too ill to travel to attend an out of court pretrial deposition of a government witness [the transcript of the deposition, if same had been conducted would have been admissible under federal law at trial], and the witness in issue, in a protection program, was too ill to travel to the courthouse ( see, e.g., United States v Gigante, 166 F3d 75).
Trial testimony from a remote location through real time teleconferencing has been permitted in civil commitment hearings involving convicted felons ( see, United States v Baker, supra [psychiatric hospitalization for convicted felonin issue]; State of New York v Luis Pedrazza, ___ Misc 3d ___, 2007 WL 3353563 [state's psychiatric examiner permitted to testify by teleconferencing from remote location at probable cause hearing in proceeding seeking civil commitment of a convicted sex offender; Court notes that the examiner's report was admissible in evidence at such hearing, pursuant to the applicable Mental Hygiene Law, without any testimony by the expert]). In In re Sawyer, 13 Misc 3d 497, the petitioner State psychiatric facility was permitted to present expert medical testimony from a remote location by means of closed circuit television in the context of an involuntary anti-psychotic medication proceeding involving a convicted felon. The Sawyer Court applied the following rationale, to wit: 1) a pretrial deposition of the physician-witness could have been videotaped pursuant to CPLR 3113 and 22 NYCRR 202.15; 2) the respondent could have been present at the deposition to confront the witness face to face; 3) pursuant to CPLR 3117(4), the use of a videotaped deposition of a physician may be introduced at trial without the necessity of showing unavailability or special circumstances; and 4) the respondent could have elected to be present in the hospital room from where the physician-witness would testify and could have confronted the witness face to face during the testimony, but the respondent elected to be brought from the hospital to the courtroom. The Sawyer Court acknowledged that CPLR 3117 limits the use of pretrial depositions at trial in recognition of the importance of oral testimony in open court (CPLR 3117[v]), and clearly limited the applicability of its holding to physician-witnesses.
All the above cited authorities balanced the respondent/defendant's right to confront witnesses face to face in a courtroom against various government interests. In the case at bar, the defendant concedes that there is no existing precedent abrogating a civil litigant's constitutional right to a face to face confrontation with witnesses where only the private rights of civil litigants are in issue. The defendant is asking this Court to recognize technological advances and to "make new law" by permitting three witnesses in India to testify from that country by means of live video.
In the case at bar, the defendant has not demonstrated that the proposed witnesses could not be produced in New York. An affidavit submitted by each witness, sworn to on July 9, 2007, states that a visa will not be granted unless the witness can get some assistance from the Supreme Court of New York confirming the dates of the trial and the availability of a translator from Telugu to English. The defendant's counsel has not presented any information as to any effort subsequent to July 9, 2007 attempting to meet these requirements. (A letter authored by a "visa consultant" referenced in defendant's counsel's affirmation as exhibit "A" is not annexed to the defendant's moving papers as exhibit "A," but such document would not have been competent proof and accordingly would not have been determinative, even if provided to the Court).
Once the applications for visas had been denied, the defendant could have undertaken to conduct pretrial depositions of the witnesses in question, on proper notice, in India, affording the plaintiff the right to attend same and confront the witnesses, face to face at the depositions. If said witnesses could not then be produced in a New York courtroom because they were out of the State (CPRL 3117[ii] or unable to attend because of infirmity (CPLR 3117[iii]), the defendant could have introduced their deposition testimony at trial. The defendant elected not to conduct pretrial depositions of these witnesses. The Court notes, in passing, that a pretrial deposition, conducted on notice, satisfies the right of face to face confrontation, and in cases where same have been conducted, and the previously deposed witness cannot be produced, a party in a civil lawsuit should be permitted to offer real time video testimony from the deposed witness
The right to confront witnesses face to face is intended to facilitate the search for the truth. Absent a compelling government interest, a party has the right, not only to observe the witness, but to have the witness give his or her evidence while facing the party against whom he or she is offering testimony. In this case, in particular, where there has been testimony of attempted bribery of a witness, and where the proposed witnesses would be outside the United States and perhaps beyond this country's ability to impose criminal sanctions for perjury, the right of confrontation must be strictly enforced. As the defendant herein failed to conduct pretrial depositions, he is precluded by CPLR 3117 from presenting testimony of the witnesses in issue at trial by teleconferencing.
Finally, the Court finds that the testimony of the witnesses in issue would be cumulative. The Court notes that neither the defendant nor the witnesses provided affidavits in support of the instant application. No one with any first hand knowledge made any offer of proof that the proposed witnesses would provide relevant, material, non-cumulative testimony. In fact, the brief showing made by the defendant's counsel sets forth apparently inconsistent information indicating one witness was seven years old when she got married and another witness, who claims to be an elementary schoolmate of the defendant, is apparently six years younger than the defendant.
Accordingly, the motion is denied and the trial is concluded. Counsel shall submit post trial summations in accordance with the following rules of this part on or before April 1, 2008, to wit:
1. All parties may submit a written Summation with respect to all issues to be decided by the Court. Said Summations shall contain the following clearly delineated sections: a) a chronological procedural history of the action, including copies of all relevant orders, written stipulations and transcripts of stipulations placed on the record; b) a recitation of the issues to be determined; c) an in depth summary of the testimony of each witness; d) a summary of the findings of any expert report received in evidence; e) a summary of the exhibits in evidence; f) a detailed recitation of counsel's contentions as to the testimony and exhibits in evidence; and g) applicable law.
2. The Summations will be marked as Court Exhibits and shall be part of the record.
3. The right to submit a Summation shall be deemed waived if not timely submitted to the Court.
4. A copy of each party's Summation shall be served on all other parties simultaneous with filing with the Court.
5. Responses to the Summation are prohibited and will not be considered.
6. The Court is to be provided the original and one copy of each Summation.
7. Summations shall have a Table of Contents. Failure to provide such Table of Contents will result in the Court not considering such summations.
This constitutes the decision and order of the Court.