The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 were read on this motion to/for DISMISS. DECISION + ORDER ON MOTION Defendant’s motion seeking dismissal of this second-filed declaratory judgment action seeking to enforce the terms of a prenuptial agreement in favor of an earlier filed New Jersey matrimonial action is granted. Plaintiff’s cross-motion seeking to stay the New Jersey matrimonial action and other relief is denied. The relevant facts of this litigation are relatively straightforward. The parties met when they were both students at Columbia University. In 2009, defendant finished her degree and returned to Mexico where she resided with her parents. That same year, the parties became engaged with plaintiff residing in New York City and defendant residing in Mexico City. On April 8, 2010, the parties signed the prenuptial agreement that is the subject of this action. On April 10, 2010, the parties had a civil marriage in New York City, which was followed, on May 1, 2010, by an additional wedding ceremony in Mexico City. After their honeymoon in 2010, the parties commenced their married life and exclusively resided in New Jersey. The parties have three unemancipated children, which consist of a 12-year-old son, an 11-year-old daughter, and a 4-year-old son. On September 12, 2023, defendant commenced a matrimonial action in the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County (“New Jersey matrimonial action”). On January 31, 2024, plaintiff answered and counterclaimed in the New Jersey matrimonial action. On May 22, 2024, plaintiff commenced the instant litigation. On June 27, 2024, defendant moved to dismiss or stay this action on grounds of forum non conveniens and prior action pending. On July 22, 2024, plaintiff cross-moved for relief under CPLR 3211(c) or, alternatively, to stay the New Jersey matrimonial action. This decision follows. It is black letter law in New York that a court may dismiss an action on forum non conveniens grounds “where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere.” Islamic Republic v. Pahlavi, 62 N.Y.2d 474, 478-79 (1984). “Among the factors to be considered are the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit.” Id. at 479 (citation omitted). Further, a “court may also consider that both parties to the action are nonresidents.” Id. Having considered the parties’ respective submissions, the Court finds, in the exercise of its discretion, that the issues asserted by plaintiff in this action should be resolved as a component of the previously filed New Jersey matrimonial action. While the parties entered into their prenuptial agreement and married in New York, their marriage has no contemporary connection to this venue. In contrast, the parties have voluntarily selected New Jersey as the place of their marriage. They have three children all born while the parties reside in New Jersey, and issues of custody, visitation and child support require resolution. Courts have repeatedly dismissed matrimonial-related actions with little nexus to New York. Teixeira v. Teixera, 223 A.D.3d 425 (1st Dep’t 2024); Morley v. Morley, 191 A.D.2d 372 (1st Dep’t 1993). In this regard, an application of the parties’ prenuptial agreement on the issue of a division of marital assets and spousal support can be made in the New Jersey matrimonial action. Finally, plaintiff’s argument that this action cannot be dismissed based upon an application of the New York General Obligations Law is without merit. The parties’ prenuptial agreement does not contain a forum selection clause, but a service of suit clause. Such clauses are nothing more than a party consenting to jurisdiction. Brooke Group Ltd. v. JCH Syndicate 488, 87 N.Y.2d 530, 534 (1996). A permissive service of suit clause neither binds a party to a particular forum nor prevents a court from applying the forum non conveniens doctrine. Id. at 534-535. As such, plaintiff is not entitled to the relief sought in the cross-motion. Accordingly, defendants’ motion is granted, and plaintiff’s cross-motion is denied. The Clerk is directed to enter judgment in favor of defendant dismissing the action without prejudice. This constitutes the decision and order of this Court. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: August 9, 2024
