Opinion
March 4, 1991
Appeal from the Supreme Court, Kings County (Vinik, J.).
Ordered that the order is affirmed, with costs.
The Supreme Court properly concluded that the defendant failed to meet his burden of proving that he had changed his New York domicile after enlisting in the United States Army. It is well settled that, "[a]n existing domicile continues until a new one is acquired, and it is incumbent upon the party seeking to prove a change [in] domicile to establish such a change by clear and convincing evidence" (Matter of Pingpank, 134 A.D.2d 263, 265; see, Matter of Newcomb, 192 N.Y. 238; Matter of Gadway, 123 A.D.2d 83; see also, Laufer v Hauge, 140 A.D.2d 671; Matter of Clute v Chu, 106 A.D.2d 841). Although the record establishes that the defendant enlisted in the Army and was stationed in Kentucky prior to the commencement of the action, the "general rule in New York and elsewhere is that military service in no way affects a person's domicile * * * in the absence of acts showing an intent to change it" (Furman v General Dynamics Corp., 377 F. Supp. 37, 45; see, Matter of Brown, 4 A.D.2d 157, 160; Small v Small, 96 Misc.2d 469, 473; Tickel v Oddo, 66 Misc.2d 386, 388; 49 N.Y. Jur 2d, Domicile and Residence, § 30, at 29; cf., Matter of Altimari v Meisser, 22 A.D.2d 933, 934, mod on other grounds 15 N.Y.2d 686; 11 Zett-Edmonds-Schwartz, N Y Civ Prac ¶ 3.10 [2] [f]). Contrary to the defendant's contentions, none of the additional acts upon which he relies is sufficient to establish, by clear and convincing evidence, that a change of domicile occurred subsequent to his enlistment in the Army. Kooper, J.P., Lawrence, Harwood and Miller, JJ., concur.