Divorce Law

Friday, June 03, 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 & Sediva’s 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 programs 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.

Friday, May 13, 2011

New York Divorce Law and Italy

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

Centenaro v. Poliero

Decided on July 23, 2009

Supreme Court, Queens County

Strauss, J.

The parties, who are Italian citizens, were married in Italy in 1993, and there are four children of the marriage aged 13, 8, 6 and 4 years. The parties own a home in Vicenza, Italy and defendant is the Managing Director of Legor Group, a family-owned business also based in Vicenza, Italy. Plaintiff is unemployed but, in May of 2009, enrolled to take non-credit continuing education courses at New York University. Plaintiff alleges that the parties' marital difficulties began on 2000. The parties initially came to New York for a vacation in December 2006, and plaintiff claims that it was decided then that the parties "needed a new start on their marriage" and decided to move to New York. Defendant, however, maintains that the parties' decision to move to New York was based on his temporary stay to establish a New York office for Legor Group. In or about March 2007, the parties returned to New York, located an apartment and an office for the business, and enrolled the two eldest children in a school sanctioned by the Italian Ministry of Education. Defendant claims that the children were so enrolled so as to facilitate their return to Italian schools at the conclusion of the family's stay in New York, a claim that plaintiff now disputes. The younger two children were enrolled in public school. Defendant maintains that the apartment remained vacant until mid-July 2007, when the parties arrived in New York with the children, and [*2]defendant supplies copies of airline itineraries to support this claim. The parties returned to Italy for the Christmas holidays for approximately three weeks in December 2007 and, at the end of the school year in New York, vacated the rental apartment and returned to the marital home in Italy in June of 2008. The family resided in Italy until September 2008, whereupon the parties and the children returned to New York and rented a different apartment for ten months. The family again returned to Italy for the holiday school break in December 2008. Defendant maintains that, in December 2008, in anticipation of the family's return to Italy and the end of the school year, the parties booked tickets for a return to Italy on July 1, 2009. Defendant also supplies a copy of an invoice showing payment for the re-enrollment of the children in school in Italy for the 2009-2010 school year, which plaintiff now claims was done without her consent.

The parties' marital difficulties evidently ensued into the Spring of 2009. Defendant supplies a translated copy of a letter, dated April 14, 2009, from an Italian divorce lawyer on behalf of plaintiff, seeking a possible resolution of the "discord and tension" in the marriage. Defendant states that he then retained Italian divorce counsel and that "there have been discussions and negotiations between those attorneys." Plaintiff claims that in May of 2009 defendant blocked her credit card and became increasingly distant from the family. Plaintiff then commenced the instant action for divorce in New York on June 6, 2009. On June 23, 2009, defendant commenced an action for separation in Italy. On June 24, 2009, defendant filed the instant motion seeking to dismiss this action and commenced proceedings in the Federal court pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Remedies Act regarding the children's return to Italy.

That branch of defendant's motion seeking dismissal of this action due to the failure of either party to meet the residency requirements of Domestic Relations Law § 230 is granted. Plaintiff, insofar as she has not yet filed her complaint, does not set forth which subdivision of section 230 applies for purposes of satisfying the residency requirements, but all require a period of residency of at least one year. (Domestic Relations Law § 230[1]-[5].)

There is no merit to plaintiff's contention that the instant motion to dismiss is premature on the grounds that a complaint has not yet been served. Rather, the court may take a "pragmatic approach...and consider DRL § 230 issues on the merits even though only a summons and not a complaint has been served." (Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book14, Domestic Relations Law §230, C230:4 at 36; Small v Small, 96 Misc 2d 469 [1978]; and see Silver v Silver, 57 AD2d 948 [1977].)

The courts have construed the residency requirements of Domestic Relations Law § 230 to mean that a party may either be domiciled in the State or have resided in the State for the requisite time period. (Unanue v Unanue, 141 AD2d 31 [1988]; Capdevilla v Capdevilla, 149 AD2d 312 [1989].) This interpretation recognizes that a party may have more than one [*3]residence, but that domicile, once established, is presumed to continue. (Unanue v Unanue, supra, at 39-40.) To constitute a domicile of choice, there must be both a physical presence in the state and the requisite intention to make the locality one's fixed and permanent home. (Unanue v Unanue, supra; Senhart v Senhart, 18 AD3d 642[2005]; and see Wildenstein v Wildenstein, 249 AD2d 12 [1998].) The courts will determine a party's domicile based upon "subjective intent," which, in turn, requires an examination of objective facts. (Unanue v Unanue, supra.) However, a mere intent or desire to reside in New York is not sufficient. (Esser v Esser, 277 AD2d 926 [2000].) In determining a parties' domicile, among the factors to be considered are the time period of New York residence, the length of any absence, the location of the children's schooling, the purchase of, or leasing out of, homes, the parties' places of worship, club memberships, performance of civic duties, and the filing of taxes or registration of automobiles. (Unanue v Unanue, supra; Bourbon v Bourbon, 259 AD2d 720 [1999].) The courts have determined that the legislative intent underlying the durational residency requirements was "to preclude...the use of our courts in matrimonial proceedings by spouses with no real ties to New York....for the sole purpose of obtaining matrimonial relief unavailable" in other states or jurisdictions. (Unanue v Unanue, supra, at 41; and see, Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book14, Domestic Relations Law §230, C230:1 at 28.)

Where the parties are shown to have many absences from this state, the court will look to see if there is "no other place to which the parties returned so frequently or with such regularity." (Weslock v Weslock, 280 AD2d 278 [2001]; Davis v Davis, 144 AD2d 621 [1988].) In this case, the place to which the parties returned with frequency and regularity was the marital home in Italy. The court finds that the parties have not resided in New York continuously, but resided here for two separate stays, each less than one year, punctuated by frequent and lengthy returns to Italy. While temporary absences from New York will not negate domicile, it remains that domicile must first be established. (Unanue v Unanue, supra.) In this case, reviewing the objective facts, it is noted that not only did the parties lease two different apartments in New York, complete with rental furniture, neither party owned property in New York. It is undisputed that all of the family's assets are located in Italy. The defendant filed a U.S. Non-resident Alien Income Tax return showing the family's Italian address, and neither party apparently registered to vote or drive in New York State. Nor does plaintiff make any showing of any civic duties undertaken during her stay in New York.

While plaintiff contends that she and the children attend church in New York, that she currently attends classes, and that she recently re-enrolled the children in New York schools, her mere desire to reside here will not satisfy the durational residency requirements. (See, Esser v Esser, supra.) Here, as in Esser, recent attempts to meet the criteria set forth in Unanue v Unanue (supra) will not establish that a party is a domiciliary of New York. Rather, it appears that plaintiff's recent attempts to establish residency were in anticipation [*4]of this divorce action itself. While much is made of the issue of the children's schooling, and whether or not the two eldest children were enrolled in a special school to facilitate their return to school in Italy, this factor alone is not controlling. The court finds an overall failure on plaintiff's part to demonstrate that either the continuous one-year period of residency was satisfied or that, prior to the Spring of 2009, she had any intention of making New York "a fixed and permanent home." (See Senhart v Senhart, supra.) Here, as in Senhart, the evidence is insufficient to show that the matrimonial domicile was ever in New York. Based upon all of the foregoing, the court finds that plaintiff's commencement of a New York action falls into the latter category of cases described in Unanue, where a party seeks only to obtain the benefits of New York matrimonial relief. (Unanue v Unanue, supra, at 41.)

Assuming arguendo, that plaintiff had met the durational residency requirements of Domestic Relations Law § 230, the court finds that the action must nevertheless be dismissed pursuant to CPLR 327 based on grounds of forum non conveniens. On a motion to dismiss on the ground of forum non conveniens, the plaintiff's choice of forum should generally not be disturbed, and the burden is on the movant to demonstrate the relevant factors that militate against a New York court's acceptance of the litigation. (Islamic Rep. of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984] cert denied 469 US 1108; Stravelle v Land Cargo, Inc., 39 AD3d 735, 736.) Among the factors weighed by the court in determining a motion to dismiss based on forum non conveniens are: 1) the burden on the New York courts; 2) the potential hardship to the defendant; 3) the unavailability of an alternative forum; 4) residency of the parties; and 5) that the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction. (Islamic Republic of Iran v Pahlavi, supra.) The great advantage of the doctrine of forum non conveniens is its flexibility based upon the facts and circumstances of each case. (Islamic Republic of Iran v Pahlavi, supra.)No single factor is controlling. (Turay v Beam Bros. Trucking, Inc, 61 AD3d 964, 966 [2009]; Smolik v Turner Constr. Co., 48 AD3d 452, 454 [2008]; Kefalas v Kontogiannis, 44 AD3d 624, 625 [2007].)

Initially, the court clearly sees both the parties and the children as domiciliaries and residents of Italy, and has already determined that the plaintiff cannot sufficiently establish herself as a resident or domiciliary of New York. The location of the operative facts is another important factor to be considered. The court finds that most, if not all, of the witnesses, evidence, marital assets, including a marital house in Vicenza and the Italian-based company, Legor Group, which would be subject to appraisal and equitable distribution, are all situated and located in Italy. The court would encounter both language barriers and certain delays in the appraisal and distribution of the marital assets. (Catapodis v Onassis, 2 Misc 234 [1956].) These facts lend a heavy weight in determining that this case would create an unnecessary burden on this court, as it is the convenience of the court, not that of the litigants, that controls the determination. (Williams v Seaboard Airline R. Co, 9 AD2d 268 [1959].)

Insofar as the parties have been in negotiations with Italian lawyers throughout the [*5]Spring of 2009, and an action has since been commenced in Italy, the court finds that a suitable alternative forum is available. (Nasser v Nasser, 52 AD3d 306[2008].) The Court finds the Italian judicial system suitable for these parties to litigate the matters at bar. Both parties are Italian citizens, who were born in Italy, married in Italy, are residents of Italy, and who raised their children there. Both parties reap the economic fruits of an Italian-based company. Indeed, a parallel action is pending in Italy, and despite the fact that the Italian action was brought by the defendant subsequent to the instant action, New York courts are not compelled to retain jurisdiction over any case which does not have a substantial nexus to New York. (Smolik v Turner Constr. Co., supra; Wentzel v Allen Mach., 277 AD2d 446 [2000]; Silver Lane Advisors v Bellatore, 2009 NY Slip Op. 51514 [Sup. Ct., NY County July 6, 2009].) The "first to file" rule is not to be followed mechanically, particularly when the actions are filed close in time. (Silver Lane Advisors v Bellatore, supra.) Moreover, the court finds that New York would be burdened with the task of adjudicating this matter all the while at the risk of having the foreign state determine the matter differently. (Sturman v Singer, 213 AD2d 324 [1995]; Hart v General Motors Corp., 129 AD2d 179 [1987].)

The court also finds that sustaining litigation in this forum would present an undue burden upon the defendant, who has since ceased his temporary residency here and returned to Italy. (Nasser v Nasser, supra.) Moreover, insofar as plaintiff herself indicates the marital difficulties began in 2000, a substantial amount of the underlying causes of action would necessarily have occurred in Italy, where the relevant witnesses would be located. The fact that the transactions out of which the cause of action arose occurred primarily in a foreign jurisdiction weighs strongly in favor of granting a dismissal on forum non conveniens. (Silver Lane Advisors v Bellatore, supra.)

Forum non conveniens relief should be granted when it plainly appears that New York is an inconvenient forum and that another is available which will best serve the ends of justice, the convenience of the parties, and the New York court system. (Silver v Great Am. Ins. Co., 29 NY2d 356, 361 [1972].) The issue at hand is best dealt with in the state where both parties to the case are citizens, where most, if not all, assets, witnesses, and substantive elements of the litigation are located, and where a parallel suit has already been filed. Given the action's marginal nexus to New York, the court determines that the action is properly dismissed on grounds of forum non conveniens.

Finally, the court considers the parties' claims concerning proceedings ongoing in Federal court, the Eastern District of New York, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Remedies Act (referred to herein as the Hague Convention action). Although the existence of the Federal court proceedings would not, in and of itself, be grounds to dismiss a New York divorce action in its entirety, the court finds that the defendant is correct in that this court cannot properly address any custody claims in light of the Federal proceedings. The court first finds that movant sought only to stay or dismiss any custody proceedings in this court while the [*6]Hague Convention action was pending, and did not seek Hague Convention relief from this court. Rather this court, by defendant's motion, was made "aware" of the Hague Convention action. (See Barzilay v Barzilay, 536 F3d 844 [8th Cir 2008].) Defendant simply chose to exercise the right to seek relief under the Hague Convention in Federal court while simultaneously pursuing other remedies in this court. (See Gaudin v Remis, 415 F3d 1028 [9th Cir 2005].) It follows that it is not for this court to undertake the analysis as to whether the children have been "wrongfully removed" from their home state, nor does defendant request this court to undertake that analysis.

Accordingly, it is not necessary for this court to consider the abstention doctrines where, as plaintiff herself recites, the Hague Convention, codified in 42 USCS §11601, would prohibit a custody determination by this court until after a determination of whether the children were wrongfully removed or retained from the place of habitual residence is made. The court finds controlling the analysis of Yang v Tsui (416 F3d 199 [3rd Cir 2005]), that, were this action not already dismissed on other grounds, this court's custody determination would properly be held in abeyance while Hague Convention proceedings were ongoing in the Federal Court. (Yang v Tsui, supra; see also Barzilay v Barzilay, supra.) Only if a Hague Convention proceeding were ongoing before this court would it be appropriate for the Federal court to abstain. (Barzilay v Barzilay, supra.) Thus, it follows that insofar as there is no Hague Convention proceeding before this court, the Federal action shall continue unimpeded, and this court, had it not dismissed this action on other grounds, would have held any determination of custody in abeyance.

A copy of this order has been faxed and/or mailed to the parties and/or their respective counsel.

Dated: July 23, 2009

J.S.C.