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Friday, June 3, 2011

Personal Jurisdiction over Italian Citizen in NY Matrimonial Action

The following case is posted for informative purposes only.  The posting of this case does not in any way reflect Marzano Lawyers PLLC legal opinion or view on the underlying matter. Furthermore, this law firm, nor any New York or Italian attorney or lawyer affiliated with this law firm, did not represent any of the  parties in the action.

.A.D., Plaintiff v. M.M., Defendant, Index Number Redacted

Supreme Court, Westchester County

Family Law

Justice Linda Christopher

Decided: May 13, 2011

The following papers numbered 1-32 were considered in connection with defendant's motion and plaintiffs cross-motion:

PAPERS NUMBERED

Notice of Motion/Affirmation/Affidavit/Exhibits/Memorandum of Law 1-6

Affirmation in Opposition/Exhibits 7-10

Reply Affirmation/Exhibit 11-12

Notice of Cross-Motion/Affidavit/Affirmation/Exhibits/Memorandum of Law 13-27

Affirmation in Opposition to Cross-Motion and in Support of Defendant's 28-31

Motion/Reply Affidavit/Exhibit/Memorandum of Law

Notice of Rejection 32

DECISION AND ORDER

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In this matrimonial action the defendant moves for an order dismissing the action for lack of personal jurisdiction, pursuant to CPLR §3211(a)(8). The plaintiff cross-moves for an order

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denying defendant's motion and directing defendant to pay plaintiff's attorneys the sum of $7500 pursuant to DRL §237.

The parties were married on October 29, 1983 in Italy. The action for divorce was commenced on September 8, 2010 with the filing of a Summons with Notice and Verified Complaint. There is one unemancipated child of the marriage born October 16, 1991, and one emancipated child born April 18, 1984.

The parties stipulated to extend defendant's time to answer, or otherwise move with respect to the complaint up to and including February 3, 2011. On February 8, 2011 defendant served and filed the instant motion seeking dismissal of the complaint for lack of personal jurisdiction over defendant. Defendant argues that he is not, nor has he ever been, a resident or domiciliary of New York, and that the court lacks personal jurisdiction over him in that none of the provisions set forth in CPLR§302(b) have been satisfied. Pursuant to CPLR §302(b)

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.

CPLR §302(b).

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Defendant asserts that New York was never the matrimonial domicile of the parties, and that no marital act ever occurred in New York. He alleges that the marital residence was in Rome, Italy where the parties raised their children, until plaintiff abandoned the marital home in Italy and moved with the children to her current domicile in White Plains, NY. Defendant avers that he remained in Italy and maintains his residence there. Defendant further claims that additionally, in order to assert long-arm jurisdiction over him, pursuant to CPLR 302(b), sufficient minimum contacts with New York must be established so that "traditional notions of fair play and substantial justice" are not offended. Senhart v. Senhart, 4 Misc.3d 862, 866-867 (NY Sup. Ct. 2004), aff'd, 18 AD3d 642 (2nd Dept. 2005). Defendant contends that he lacks the requisite minimum contacts with New York required to confer personal jurisdiction. He claims he resides in Italy and does not have any contacts with New York other than to occasionally visit his children. He avers that he does not conduct any business activity and does not have an office or phone number in New York, nor does he own any real property or tangible personal property in New York. Also, defendant claims that plaintiff has engaged legal counsel in Italy to negotiate the settlement of marital issues with his attorneys in Italy.

Plaintiff argues in her opposition1 that defendant does in fact have the requisite contacts with the State of New York to confer jurisdiction. She alleges that in 2003, the defendant and she agreed that she and the children would move to White Plains, New York because of the medical facilities and progrMarzano Lawyers PLLC available there for the parties' child, M., who has serious medical issues.

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Plaintiff asserts that the residence in White Plains was purchased in 2003 with marital funds transferred to the plaintiff's New York bank account, and that on a monthly basis defendant transfers funds to the White Plains bank account to pay all of the family's necessary expenses. Plaintiff claims defendant's statement that he has never been a resident or domiciliary of New York is false, in that he obtained health insurance for himself and the family by advising the insurance company that his address is --, NY. Moreover, she alleges that the parties' son attends school in Westchester. Plaintiff also argues that defendant has used the Westchester County courts to have a guardian appointed on behalf of the parties' son's person and property and that he has created a supplemental needs trust, which was to be funded by him, wherein he is a co-trustee and the trust and his actions as trustee are governed by the laws of New York. Plaintiff asserts that defendant is repeatedly conducting business within Westchester County and the State of New York in that, inter alia, in 2005 in connection with high level position with the Italian government, he arranged an Autumn Concert for the benefit of the Westchester ARC Foundation, the Westchester ARC Board and the Italians in the U.S., and in that he is the Executive Director/Managing Director of a company which has a division in New York. Plaintiff claims that her claim for support, maintenance, equitable distribution, a distributive award or special relief in this matter accrued under the laws of New York as defendant has been paying her approximately $15,000 per month since 2003. Plaintiff also alleges that, until recently, defendant would visit with the parties' son and her for two days per month, when his work schedule permitted.

In addition to claiming that the Court obtained personal jurisdiction over defendant pursuant to CPLR §302(b), plaintiff states that on October 30, 2010 the defendant was personally served with the Summons with Notice at the Regency Hotel in New York, and she has submitted an affidavit of service attesting to such service.2 (See plaintiff's Exhibit J). Defendant objects to

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this submission by plaintiff, and claims she waived her right to rely on it, as she had two prior opportunities to introduce it.3 He asserts that plaintiff is implying, without offering any argument, that defendant was personally served in New York, and for the first time she attempted to introduce an affidavit of service that purported same, by merely attaching said affidavit as a superfluous exhibit4. Defendant complains that on December 8, 2010 a copy of the particulars of service were requested from plaintiff's counsel, and despite promises to supply same, no documents were received.

Defendant contends that the service effected in New York must be vacated, in that it was predicated upon subterfuge. He claims that plaintiff lured him into New York for the purpose of effectuating service upon him.5 Defendant alleges that he planned to come to New York in

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September 2010 to visit his son, M., but that plaintiff advised him to postpone his trip until the end of October, and requested he bring the parties' older son, M., with him. Defendant asserts that he was aware that M. made plans to meet a school friend, M. E. C., in New York during the October trip. Defendant alleges that Ms. E.C. also periodically assists plaintiff in the New York household. It is defendant's contention that the October trip was arranged to lure him into New York in order for Ms. E. C. to serve him at his hotel in New York. Defendant claims that he is entitled to a traverse hearing since he has raised a question of fact as to whether he was lured into the state by subterfuge so as to effectuate personal service. Allen v. Betterly, 258 AD 907 (2nd Dept. 1939).

As a general rule, personal jurisdiction is obtained by a reasonable method of service upon a person while he or she is physically present within the State. Rawstorne v. Maguire, 265 NY 204, 207 (1934); See, CPLR §301. "[J]urisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of 'traditional notions of fair play and substantial justice.'" Burnham v. Superior Court of California, 495 US 604 (1990). However,

[t]he general rule is that when a nonresident defendant...has been enticed into the jurisdiction by fraud and deceit for the purpose of obtaining service upon him, the service thereby effectuated will be vacated. (citations omitted). It is equally well established that if the defendant is not lured into the jurisdiction, but is here of his own free will, the service will not be invalidated merely because it was accomplished through the use of deception.(citations omitted).

Hammett v. Hammett, 74 AD2d 540 (1st Dept. 1980).

In DeMartino v. Rivera, 148 AD2d 568 (2nd Dept. 1989) the Second Department vacated

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a default judgment, finding that service of process was procured by fraud and/or coercion, and therefore, the court did not have personal jurisdiction over defendant. In this case, the defendant, a New Jersey resident, was involved in a car accident. Id. at 569 Approximately three years after the accident, he received a series of phone calls directing him to come to New York to get papers related to the accident, and threatening him that if he failed to come to New York he would face "serious legal consequences and problems." Id. The defendant did come into New York and, when he traveled to where the caller had directed him to go, he was met by an individual who handed him a summons and complaint and $46 in cash. Id. The appellate court found that defendant had been "lured into New York on the assurance that no 'serious legal consequences and problems' would befall him." Id. at 570.

The same result ensued in Terlizzi v. Brodie, 38 AD2d 762 (2nd Dept. 1972). In that case, defendants who were New Jersey residents were called at home a few years after they had been involved in an automobile collision. Id. They were told they had been chosen to receive tickets to a Broadway show as part of a promotion to get their opinion on a questionnaire regarding the new 7:30 pm show time. Id. After the performance, while they were still in the theater, the defendants were served with a summons by the man who had been sitting behind them; no questionnaire was given to defendants. Id. The court found that the service effected was invalid, as the defendants were lured into New York by fraud or deception. Id.

In United Industrial Corporation v. Schreiber, 51 AD2d 688 (1st Dept. 1976) the court distinguished the situation where, at the suggestion of plaintiff, a nonresident defendant made just one trip to New York to discuss settlement of the matter at issue, and was then served with process at the close of the settlement meeting, requiring that service be vacated, [see, Olean St. Ry. Co. v. Fairmount Const. Co., 55 AD 292 (4th Dept. 1900)], from the situation where

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nonresident defendants served in New York, were constantly coming into New York to attend board of directors meetings, and although settlement discussions were in progress, they were part of the regular business of the board of directors, rendering service valid. United Industrial Corporation, 51 AD2d 688. The court found that in the latter situation there did not appear to be a scheme on the part of the plaintiff to lure defendants into New York in order to serve them with process. Id.

Similarly, in Hammett v. Hammett, 74 AD2d 540, the First Department upheld service upon a nonresident respondent who was served while present in New York. In addition to the fact that the respondent failed to controvert petitioner's statement that she did not request respondent to come into the jurisdiction, the court found it pertinent that respondent acknowledged he would spend one weekend each month in New York at the parties' apartment, and that occasionally he came to New York during the week for business and social occasions. Id.

Defendant argues that plaintiff lured him into New York for the purpose of effectuating service upon him because she allegedly requested that he change his plans to come to New York to visit the parties' son, from September, as originally planned, to October, and then had him served while he was here in October. The Court does not find defendant's argument to be persuasive. In the instant matter the parties' son, M., was living in New York with plaintiff since 2003 and defendant would visit him on occasion. Any time that defendant made arrangements to visit the child in New York, plaintiff would have been made aware that he was going to be present in the State, and would have had an opportunity to effectuate service upon him. In this instance, defendant had been planning to come into the jurisdiction, albeit one month earlier, in September, for such a visit. Also, when defendant came into New York in October, he was

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aware that his older son, M., was planning to visit with his school friend, M. E. C., who was the woman who ultimately served defendant.

The Court finds the facts of this matter are inapposite to the facts of DeMartino and Terlizzi, where the courts found that the defendants were lured into the jurisdiction by fraud or deception. In those matters, the defendants came into New York solely for a purpose that was fabricated by the plaintiff, and they were then served with process. The defendant in DeMartino came into New York based on plaintiff telling him that if he failed to come to New York he would face "serious legal consequences and problems." In Terlizzi, plaintiffs lured defendants into New York on the pretense that they had been chosen to receive tickets to a Broadway show as part of a nonexistent promotion to get their opinion on the questionnaire regarding the new 7:30 pm show time, but no questionnaire was ever given to the defendants.

In this case, similar to Hammett and United Industrial, where the courts upheld a challenge to service within the state upon a nonresident, the defendant was served with process, when he was in New York for the purpose of visiting his son. While plaintiff may have requested that defendant come in October as opposed to September for the visit, that did not change the fact that there was a legitimate purpose for the trip, to wit: visiting his son. Also, this was not an isolated incident; respondent came to New York on other occasions to visit his son, as well as having made visits for business relating to his government position.

It is this Court's opinion that plaintiff did not lure defendant into New York on pretense. The fact that she requested defendant to come visit their son in October, when he already had planned to come in September did not constitute luring defendant into the jurisdiction by fraud and deceit for the purpose effecting service. The Court further determines that a hearing is not required in this matter; even if the Court accepts all of defendant's allegations as being true, the

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Court does not find that plaintiff lured him into New York by fraud and deception necessitating vacating service. Accordingly, defendant's motion to dismiss the complaint for lack of personal jurisdiction is denied, as personal jurisdiction has been obtained over defendant by serving him with process while he was present within the State.

Cross-Motion

Plaintiff requests $7500 in counsel fees. She alleges that she has been unemployed since the parties' marriage, and that defendant earns in excess of $900,000 plus substantial benefits annually. Plaintiff's request is denied at this time without prejudice. Plaintiff has failed to comply with 22 NYCRR 202.16(k). She has not provided a sworn Statement of Net Worth, a copy of the fully executed retainer agreement, counsel's billing statements and the money paid on account, if any, by plaintiff or on behalf of plaintiff.

All matters not decided herein are denied.

This decision shall constitute the order of the Court.

E N T E R

1. Plaintiff initially opposed the motion to dismiss on the grounds that defendant failed to comply with the Westchester Supreme Court Matrimonial Operational Rules in that he did not request a pre-motion conference on this issue, and that defendant's motion to dismiss was untimely. The matter came before the Court on February 28, 2011 at which time the Court granted plaintiff an opportunity to answer and address the merits of the motion, and gave defendant an opportunity to reply. The Court adjourned the motion to March 21, 2011 and directed defendant to have his papers filed by 9:30 a.m. on that date.

2. If defendant was validly served with process while present within the State of New York, the issue of whether the Court acquired personal jurisdiction over him by operation of the long arm provisions of CPLR §302(b) is not determinative, as presence in New York is a valid basis for jurisdiction. See, CPLR §301.

3. Defendant claims that at the court appearance on the return date of the motion, plaintiff did not mention that she wished to submit an affidavit of service in her request for leave to resubmit her opposition.

4. However, the Court notes that plaintiff had previously submitted the same affidavit of service with her answering papers which were filed February 23, 2011, in support of her allegation that defendant was personally served at the Regency Hotel in New York. No argument was made by plaintiff at that time regarding service having been effectuated in New York. She simply attached the affidavit as part of the procedural history.

5. Defendant makes the argument that plaintiff lured him into New York for purposes of serving him in his Affirmation and Affidavit in Support of Defendant's Motion to Dismiss and in Opposition to Plaintiff's Cross-Motion and defendant's Memorandum of Law. Plaintiff filed a Notice of Rejection with regard to these documents on the basis that they were not timely served, as they were received by plaintiff's counsel via regular mail on March 23, 2011. She claims these documents were to be received by her and the Court no later than March 21, 2011. Plaintiff also wrote a letter to the Court dated March 25, 2011 requesting that the Court disregard defendant's Reply papers. At the court appearance on February 28, 2011 when asked if an appearance was going to be required on March 21, the Court had stated that the motion was returnable the 21st so defendant had to have his papers in court 9:30 unless he heard from the Court otherwise. Defendant appeared on March 21, 2011 the return date of the motion and submitted his Reply papers (he claims in a letter he wrote to the Court dated April 5, 2011 that on March16 he received a notification from Ecourts reflecting the appearance). Plaintiff did not appear on March 21 (she claims in her letter dated March 25 that she understood no appearances were required unless she was notified otherwise, which she was not). The Reply papers were served upon plaintiff via regular mail on March 21, 2011. The Court reminds plaintiff that notwithstanding that plaintiff had already submitted and served opposition to defendant's Motion to Dismiss on procedural grounds only, without having addressed the merits, the Court granted plaintiff another opportunity to answer the motion when the parties appeared on the return date of February 28, 2011.




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