DECISION & ORDER Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments and testimony, for the reasons set forth on the record it is ORDERED that Motion #001 by the Defendant seeking to dismiss the action is hereby granted. This matrimonial action was filed by the Plaintiff Monica Samal (hereinafter “Plaintiff”) with the filing of a Summons with Notice on November 1, 2021. Per Affidavit, the Summons with Notice was served upon the Defendant Pramit Samal (hereinafter “Defendant”) on November 2, 2021. A Complaint was filed on December 10 2021. The Complaint alleges that the Plaintiff resided in New York State for a continuous period in excess of two years immediately preceding the commencement of the action. It further alleges that the grounds for divorce was the irretrievable break down of the marriage pursuant to Domestic Relations Law §170(7). Defendant moves to dismiss the action as follows: (a) Pursuant to CPLR §3211(a)(2), granting Defendant judgment dismissing the Plaintiffs Summons and Complaint seeking a divorce based upon lack of subject matter jurisdiction; (b) Pursuant to DRL §230, granting Defendant judgment dismissing Plaintiffs Summons and Complaint seeking a divorce based upon failure to meet statutory residency requirements; (c) Pursuant to CPLR §3212(a)(8), granting Defendant judgment dismissing Plaintiffs Summons and Complaint due to lack of personal jurisdiction; (d) Pursuant to Article 5-A of the Domestic Relations Law, CPLR §3211(a)(2), and DRL §75-78 dismissing Plaintiffs causes of action which seek as ancillary relief custody and support of the parties’ child, based upon lack of subject matter jurisdiction; (e) Pursuant to CPLR §3211 (a)(4), granting Defendant judgment dismissing the portion of Plaintiffs Summons and Complaint seeking custody based upon another action pending for the same cause of action; (f) Pursuant to 22 NYCRR 130-1.1, seeking sanctions upon Plaintiff and counsel fees. Procedural History The parties were married on April 4, 2012, in New York, NY. The marriage certificate, submitted as an exhibit to the Plaintiffs Opposition to Motion #001, lists 42 Greaves Street, Staten Island, NY as the parties’ address in 2012. The parties began residing in India in approximately 2013 after their Hindu marriage ceremony. The child of the marriage, V.S., was born on March 8, 2016, in New York. Per the parties, the child only remained in New York for approximately three months after birth, before the family returned to India. The family remained in India until the Plaintiff and the child arrived in New York in May 2021 for an alleged vacation. Per the Defendant, the Plaintiff and child were due to return to India in August 2021, but failed to do so. In September 2021 and November 2021, the Defendant filed separate applications in India for the child to be returned. On November 1, 2021, the instant action was commenced with the filing of a Summons with Notice. A Complaint was then filed on December 10, 2021. The instant motion to dismiss was filed on December 28, 2021. JURISDICTION Subject Matter Jurisdiction Pursuant to Domestic Relations Law 230, “An action…for divorce or separation may be maintained only when… 1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or 4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or 5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action. It is the Plaintiffs burden to show that she has maintained a domicile in New York for a continuous period of at least one year before commencement. “When undertaking to determine an issue of domicile, evidence of the following circumstances is relevant: a place of residence in the State of alleged domicile; length of time of residence, location of schools attended by the children; leasing, buying, negotiating for or building a home; declarations, oral or written, made at the time, or in connection with, a move which shows intent that a residence shall be permanent; place of worship and club memberships; place of performance of civic duties, such as voting, jury duty, payment of personal income taxes; place of bank account; jurisdiction where an automobile is registered; and the State of issuance of a driver’s license.” See Unanue v. Unanue, 141 A.D.2d 31 (2d Dept. 1988). The “durational residency requirements are not a limitation upon the subject matter jurisdiction of the Supreme Court but are merely ‘substantive elements’ of the matrimonial cause of action, which the plaintiff must allege and prove.” Unanue v. Unanue, 141 AD2d 31, 34 [2d Dept. 1988]. The “determination of the question of whether a party continuously dwelled in this state for the applicable duration will be governed by objective fact findings as to where the party physically lived, whereas a determination of domicile is controlled by the subjective intent of the party whenever the party moves.” Id. at 39. Plaintiff alleges in her Complaint that she had been a continuous resident of the State of New York prior to her application for divorce. The Court finds this to be baseless. Based upon the testimony provided at the hearing, the Plaintiff had been continuously living in India since approximately 2013. Contrary to the Plaintiffs contentions, being claimed on a family member’s tax return as a dependent, keeping a bank account, and a driver’s license, does not establish a continuous dwelling, a subjective intent, or domicile sufficient to establish residency and maintain a cause of action for divorce. Therefore, the Defendant’s Motion to Dismiss pursuant to CPLR 3211(a)(2), based upon a lack of subject matter jurisdiction is hereby granted. Personal Jurisdiction The Defendant further claims that the action must be dismissed as the Court lacks personal jurisdiction. Under CPLR 301, the Court may exercise personal jurisdiction over those domiciled in the state or those doing business in the state. See CPLR 301; Nilsa B. v. Clyde Blackwell H., 84 AD2d 295 [2d Dept. 1981]. Due process mandates that there must be “minimum contacts” between an individual and the forum state so that the imposition of jurisdiction by the courts of the forum state does not offend traditional concepts of fair play and substantial justice. International Shoe, Co. v. Washington, 326 US 310,316 (1945). “The minimum contacts standard is designed to protect a defendant from having to litigate in a distant or inconvenient forum with which he has established no meaningful contacts, ties, or relations.” Burger King Corp. v. Rudzwicz, 471 US 462, 471-472 (1985). CPLR 302(b) provides long-arm jurisdiction of a defendant in a matrimonial action: Personal jurisdiction over non-resident defendant in matrimonial actions or family court proceedings. A court in any matrimonial action or family court proceeding involving a demand for support, alimony, maintenance, distributive awards or special relief in matrimonial actions may exercise personal jurisdiction over the respondent or defendant notwithstanding the fact that he or she no longer is a resident or domiciliary of this state, or over his or her executor or administrator, if the party seeking support is a resident of or domiciled in this state at the time such demand is made, provided that this state was the matrimonial domicile of the parties before their separation, or the defendant abandoned the plaintiff in this state, or the claim for support, alimony, maintenance, distributive awards or special relief in matrimonial actions accrued under the laws of this state or under an agreement executed in this state. The family court may exercise personal jurisdiction over a non-resident respondent to the extent provided in sections one hundred fifty-four and one thousand thirty-six and article five-B of the family court act and article five-A of the domestic relations law. The Defendant is not a domiciliary of New York, nor was he personally served within the state. Though the Defendant made approximately six trips to New York over the course of ten years, visiting a state does not establish minimum contacts or personal jurisdiction. Based upon the foregoing, the Defendant’s Motion to Dismiss on the grounds that the Court lacks personal jurisdiction is hereby granted. PLAINTIFF’S ANCILLARY DEMANDS FOR RELIEF The Plaintiff’s Complaint seeks ancillary relief to the divorce action, including custody of the child of the marriage and visitation for the Defendant. Domestic Relations Law 76 provides the Court jurisdiction to make an initial child custody determination if: (a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; (b) a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section seventy-six-f or seventy-six-g of this title, and: (i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and (ii) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships; (c) all courts having jurisdiction under paragraph (a) or (b) of this subdivision have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section seventy-six-f or seventy-six-g of this title; or (d) no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or (c) of this subdivision. Plaintiff arrived in New York on May 20, 2021, and this action was filed on October 22, 2021, which falls short of the required six-month duration to make New York the child’s home state under the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter “UCCJEA”). Furthermore, the Defendant commenced an action in India, in the Orissa High Court, on September 21, 2021, and a second action in the Bhubaneswar Family Court on November 18, 2021. Both actions in India seek an award of custody to the Defendant and a return of the child to India. New York courts routinely dismiss custody proceedings where it is determined that New York is not a child’s home state as defined by the UCCJEA and Domestic Relations Law. See Agueda v. Rodriguez, 960 NYS2d 142 [2d Dept. 2013]; Navarette v. Wyatt, 861 NYS2d 393 [2d Dept. 2008]. It is also well settled that priority of the first-properly filed custody action in a child’s home state is determinative under the UCCJEA, regardless of personal service of that action. Evans v. Evans, 208 AD 223, 227 [4th Dept. 1995]. Furthermore, the Domestic Relations Law 76-g(1) states “if a court of this state has jurisdiction under this article because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction….” However, a wrongful removal may not necessarily be considered “unjustifiable conduct”, “if there is evidence that the taking or retention of the child was to protect the petitioner from domestic violence.” Felty v. Felly, 66 AD3d 64 [2d Dept. 2009]. Despite the allegations of domestic violence made by the Plaintiff for the first time in her opposition affidavit, the Court does not find the allegations to be credible based upon a totality of the evidence and testimony. Furthermore, the Court finds that the Defendant first instituted a custody action in the child’s home state of India, thereby relieving New York of jurisdiction in the action. Based upon the foregoing, the Court is declining to exercise jurisdiction on the ancillary issues. CONCLUSION In summary, the Defendant’s Motion to Dismiss is granted for lack of subject matter jurisdiction and personal jurisdiction. Furthermore, the Court declines to exercise jurisdiction on the ancillary issues. The Defendant’s request for sanctions and costs is hereby denied based upon the income inequity between the parties and despite the lack of jurisdiction, the Plaintiff’s filings were not frivolous. This constitutes the Decision and Order of the Court. Dated: May 10, 2022
