Kelly M. Lyons, Plaintiff v. Rienzi & Sons, Inc., Defendant., 09-CV-4253

U.S. District Court, Eastern District

District Judge Jack Weinstein

Decided: April 23, 2012

Table of Contents

I. Introduction and Summary of Procedural History2

II. Facts4

III. Law5

A. Rule 12(b)(2) Standard After Jurisdictional Discovery5

B. Personal Jurisdiction Analysis Pursuant to Forum Law5

1. General Jurisdiction-New York CPLR §3016

2. Long-Arm Statute and Specific Jurisdiction-New York CPLR §3026

3. Due Process Requirements8

C. Rule 4(k)(2) of the Federal Rules of Civil Procedure9

IV. Application of Law to Facts10

A. New York Long-Arm Statute and Due Process Clause10

B. Rule 4(k)(2) of the Federal Rules of Civil Procedure12

V. Conclusion12

AMENDED MEMORANDUM AND ORDER

I. Introduction and Summary of Procedural History

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A yacht designer, resident abroad, whose work was done in Europe, was sued after a seafarer was injured on a vessel, allegedly because of faulty naval architecture. It asserts lack of personal jurisdiction. As indicated below, there is no personal jurisdiction. It should also be noted that the movant's mere possession of an account on Facebook is not, in the context of this case, a sufficient predicate for hauling it into a court in New York.

This memorandum and order should be read in conjunction with the memorandum and order to be filed shortly granting summary judgment in favor of third-party defendant Marquis Yachts, LLC ("Marquis").

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Kelly Lyons sued defendant Rienzi & Sons, Inc. ("Rienzi"). He alleged that he was employed by Rienzi as the captain (and sole crew member) of a 65-foot yacht — the Brianna — owned by defendant, and that, in August 2008, he was injured after slipping and falling while working aboard the vessel. He claims that his injuries were caused by Rienzi's negligence in providing a slippery deck surface. See generally Complaint, Lyons v. Rienzi & Sons, Inc., No. 09-CV-4253 (E.D.N.Y. Oct. 2, 2009), CM/ECF No. 1.

Rienzi later brought a third-party complaint, pursuant to Rule 14 of the Federal Rules of Civil Procedure, against the manufacturer of the Brianna and its putative successor, an intermediate seller, and the designer of the yacht, third-party defendant and present movant Nuvolari-Lenard S.R.L. ("Nuvolari"), who Rienzi sued as Nuvolari-Lenard Naval Design. Asserting various claims against Nuvolari in its third-party complaint, Rienzi contended that if it were held liable to Lyons, the third-party defendants, including Nuvolari, should contribute to any judgment or indemnify it entirely. See Third-Party Complaint, Lyons v. Rienzi & Sons, Inc., No. 09-CV-4253 (E.D.N.Y. Jan. 7, 2011), CM/ECF No. 14. Lyons, the original plaintiff, then brought his own claims against the third-party defendants pursuant to Rule 1 4(a)(3) of the Federal Rules of Civil Procedure. See Plaintiffs Rule 14(a) Claims Against Third-Party Defendants, Lyons v. Rienzi & Sons, Inc., No. 09-CV-4253 (E.D.N.Y. June 10, 2011), CM/ECF No. 42.

In November 2011, Nuvolari filed a motion pursuant to Rule 1 2(b)(2) of the Federal Rules of Civil Procedure, arguing that Lyons and Rienzi' s claims against it should be dismissed for lack of personal jurisdiction. Opposing, Lyons and Rienzi contended that they were entitled to jurisdictional discovery. Jurisdictional discovery was completed in March 2012. Nuvolari has now renewed its motion to dismiss. For the reasons stated below, the motion is granted.

*3 II. Facts

Nuvolari was founded in 1992 by Carlo Nuvolari-Duodo and Dan Lenard. It remains a small company; Nuvolari has six full-time employees and four who work part-time. See Supp. Decl. of Carlo Nuvolari-Duodo in Support of Renewed Motion to Dismiss for Lack of Personal Jurisdiction ("Nuvolari-Duodo Supp. Dccl.") ¶6, Lyons v. Rienzi & Sons, Inc., No. 09-CV-4253 (E.D.N.Y. Mar. 12, 2012), CM/ECF No. 109. All of Nuvolari's design work is carried out at its Italian design center, where the company has a single mailing address. Its telephone and fax numbers allow it to be contacted only in Italy. See id. ¶¶7-8. The company's website was created in Italy and is updated there; consumers cannot purchase or request the provision of services through the website. See id. ¶9. Nuvolari has not sought authorization to do business in — and is not registered to do business in — any state in the United States. See id. ¶11. The company does not retain batik accounts or agents in this country. See id. ¶10. The company does maintain, however, a Facebook page; it can be accessed by United States users of the site. See Ex. 26 to Affirmation of Susan Lee in Opposition to Motion to Dismiss Filed by Nuvolari Lenard S.R.L., Lyons v. Rienzi & Sons, Inc., No. 09-CV-4253 (E.D.N.Y. Mar. 26, 2012). CM/ECF No. 123-6.

Nuvolari-Duodo and Lenard have traveled to the United States numerous times on the company's behalf. Most of these trips were taken for the purpose of attending boat shows in Florida. See Nuvolari-Duodo Supp, Decl. ¶¶31-32. Many of the others were taken for the purpose of reviewing the construction in Wisconsin of vessels, designed by Nuvolari, for third — party defendants Carver Boat Corporation LLC ("Carver") and Marquis. See id. ¶33. Carver later changed its name to Genmar Yacht Group LLC ("Genmar"); Genmar has been named as a third-party defendant in this case.

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In February 2002, Nuvolari agreed to provide yacht designs to Carver in exchange for royalty payments. See id. ¶¶13, 15. Nuvolari-Duodo, the company's CEO and senior partner, signed an agreement to that effect in Italy. See id. ¶14. Over the last eight years, its earnings only from yachts it designed that were manufactured in shipyards in Wisconsin amounted to approximately $9 million. See April 10, 2012 Hr'g Tr. 4. Nuvolari appears to have received some $30,000 for the design of the Brianna, which was designed in Italy, manufactured in Wisconsin, and ultimately transported to New York, where it was sold to Rienzi in that state by third-party defendant Staten Island Yacht Sales, Inc. See Affirmation of Susan Lee in Opposition to Motion to Dismiss Filed by Nuvolari-Lenard S.R.L. ("Lee Aff.") ¶¶8-9, 35-36, Lyons v. Rienzi & Sons, Inc., No. 09-CV-4253 (E.D.N.Y. Mar. 26, 2012), CM/ECF No. 122.

III. Law

A. Rule 12(b)(2) Standard After Jurisdictional Discovery

"On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant." Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). "Before discovery, a plaintiff may defeat such a motion with legally sufficient allegations of jurisdiction. Where the parties have conducted jurisdictional discovery but have not held an evidentiary hearing, the plaintiff must allege facts that, if credited, would suffice to establish jurisdiction over the defendant." Chaiken v. VV Publ'g Corp., 119 F.3d 1018, 1025 (2d Cir. 1997) (citation, ellipses, and internal quotation marks omitted). But see Landoil Res. Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1990) (stating that "[s]ince the district court allowed the parties to conduct discovery on the jurisdictional issue, [plaintiff] bears the burden of proving by a preponderance of the evidence that personal jurisdiction exists").

B. Personal Jurisdiction Analysis Pursuant to Forum Law

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"District courts resolving issues of personal jurisdiction must engage in a two-part analysis." Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005) (internal quotation marks mid ellipses omitted). "First, a district court must determine whether, under the laws of the forum state.., there is jurisdiction over the defendant. Second, it must determine whether an exercise of jurisdiction under these laws is consistent with federal due process requirements." Id. (citation, internal quotation marks, and bracketing omitted); see, e.g., Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163-64 (2d Cir. 2010).

1. General Jurisdiction — New York CPLR §301

"Under New York law, a foreign corporation is subject to general personal jurisdiction in New York if it is 'doing business' in the state." Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir. 2000) (citing N.Y.C.P.L.R. §301). "A corporation is 'doing business' and is therefore 'present' in New York and subject to personal jurisdiction with respect to any cause of action, related or unrelated to the New York contacts, if it does business in New York not occasionally or casually, but with a fair measure of permanence and continuity" Id. (internal quotation marks arid bracketing omitted). "In order to establish that this standard is met, a plaintiff must show that a defendant engaged in continuous, permanent, and substantial activity in New York." Id, (internal quotation marks omitted).

2. Long-Arm Statute and Specific Jurisdiction — New York CPLR §302

New York's long-arm statute, allowing in limited instances for the exercise of personal jurisdiction over nondomiciliaries whose actions have a substantial impact within the state — if the claim asserted is based upon that conduct — provides in relevant part that:

(a) Acts which are the basis of jurisdiction As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary who in person or through an agent:

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(1) transacts any business within the state or contracts anywhere to supply goods or services within the state; or

(2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or

(3) commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

(i) regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue from goods used or services rendered, in the state, or

(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce….

N.Y.C.R.L.R. §302(a).

"New York courts evaluating…jurisdiction under section 302(a)(l) look to both the language of the statute and the relation between the alleged conduct and the cause of action. To determine the existence of jurisdiction under section 302(a)(1), a court must decide (1) whether the defendant transacts any business in New York and, if so, (2) whether th[e] cause of action arises from such a business transaction." Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007) (internal quotation marks and bracketing omitted). "Courts look to the totality of the defendant's activities within the forum to determine whether a defendant has transacted business in such a way that it constitutes purposeful activity satisfying the first part of the test." Id. (internal quotation marks, citation, and bracketing omitted) "As for the second part of the test, a suit will be deemed to have arisen out of a party's activities in New York if there is an articulable nexus, or a substantial relationship, between the claim asserted and the actions that occurred in New York." Id. (internal quotation marks and bracketing omitted).

The ambit of section 302(a)(2) is more limited. It "reaches only tortious acts performed by a defendant who was physically present in New York when he performed the wrongful act." Bensusan Rest Corp. v. King, 126 F.3d 25, 28 (2d Or. 1997).

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Section 302(a)(3) allows for "a nondomiciliary who 'commits a tortious act without the state causing injury…within the state' [to] be brought before a New York court to answer for his conduct if he has had sufficient economic contact with the State or an active interest in interstate or international commerce coupled with a reasonable expectation that the tortious conduct in question could have consequences within the State." McGowan v. Smith, 419 N.E.2d 321, 323-24 (N.Y. 1981) (quoting N.Y.C.P.L.R. §302(a)(3)).

3. Due Process Requirements

If the court concludes that the exercise of personal jurisdiction is authorized by state law, it must next be determined whether the exercise of jurisdiction over a given defendant would comport with the constitutional guarantee of due process. (The due process inquiry is of especial utility when the putative lack of personal jurisdiction is raised as a defense in a case brought in New York, since the state's "long-arm statute does not extend in all respects to the constitutional limits established by International Shoe Co. v. Washington, 326 U.S. 310 (1945), and its progeny." Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, No. 10-CV-1306, 2012 WL 688809, at *5 (2d Cir. Mar. 5, 2012) (parallel citation omitted)).

"The required due process inquiry…has two parts: whether a defendant has minimum contacts with the forum state and whether the assertion of jurisdiction comports with traditional notions of fair play and substantial justice — that is[,] whether the exercise of jurisdiction is reasonable under the circumstances of a particular case." Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 99 (2d Cir. 2000) (internal quotation marks, bracketing, and ellipses omitted).

In undertaking the minimum-contacts analysis, courts are to remember that, "'it is essential…that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and

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protections of its laws.' Such purposeful conduct provides a defendant with fair warning that he and his property may be subject to the exercise of that forum state's power." Bensmiller v. E.I. Dupont de Nemours & Co., 47 F.3d 79, 84-85 (2d Cir. 1995) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)) (additional internal quotation marks, emphases, and explanatory parenthetical omitted). "The principal inquiry…is whether the defendant's activities manifest an intention to submit itself to the power of a sovereign….[A] s a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State." J. McIntyre Mach,, Ltd. v. Nicastro, 131 S. Ct. 2780, 2788 (2011) (plurality opinion); see also Jonathan M. Hoffman, Personal Jurisdiction After Nicastro and Goodyear: Where Do We Stand Now?, 40 Products Safety & Liability Reporter 418, 420-22 (Apr. 9, 2012).

The determination of whether the exercise of jurisdiction is reasonable "will depend on an evaluation of several factors. A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief. It must also weigh in its determination the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies." Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 113 (1987) (internal quotation marks omitted); see also Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 164-65 (2d Cir. 2010) (discussing factors to be considered during the course of the reasonableness analysis).

C. Rule 4(k)(2) of the Federal Rules of Civil Procedure

Rule 4(k)(2) of the Federal Rules of Civil Procedure provides that:

(2) Federal Claim Outside State-Court Jurisdiction For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

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(A) the defendant is not subject to Jurisdiction in any state's courts of general jurisdiction; and

(B) exercising jurisdiction is consistent with the United States Constitution and laws.

Fed. R. Civ. P. 4(k)(2) (emphases omitted).

"Under this provision, a defendant sued under federal law may be subject to jurisdiction based on its contacts with the United States as a whole, when the defendant is not subject to personal jurisdiction in any state. Rule 4(k)(2) confers personal jurisdiction over a defendant so long as the exercise of jurisdiction comports with the Due Process Clause of the Fifth Amendment." Dardana Ltd. v. A.O. Yuganskneftegaz, 317 F.3d 202, 207 (2d Cir, 2003) (emphasis added).

"Rule 4(k)(2)…allows the exercise of personal jurisdiction by a federal district court when three requirements are met: (1) the claim must arise under federal law; (2) the defendant must not be subject to jurisdiction in any state's courts of general jurisdiction; and (3) the exercise of jurisdiction must be consistent with the United States Constitution and laws." Porina v. Marward Shipping Co., Ltd., 521 F.3d 122, 127 (2d Cir. 2008) (internal quotation marks omitted).

IV. Application of Law to Facts

Nuvolari's motion to dismiss for lack of personal jurisdiction is granted.

A. New York Long-Arm Statute and Due Process Clause

The exercise of personal jurisdiction on a theory of general jurisdiction is inappropriate. See N.Y.C.P.L.R. §301. Nuvolari does not engage in systematic and continuous activity in New York. See Nuvolari-Duodo Supp. Decl. ¶¶7-11. The company's Facebook page — admittedly accessible to that site's users in New York — does not compel a different conclusion with respect to general jurisdiction.

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Most of the provisions of New York's long-arm statute do not provide even a colorable basis for the exercise of personal jurisdiction over Nuvolari. Section 302(a)(1) does not allow for the exercise of personal jurisdiction, since the company did not transact any business in New York. The Brianna was designed in Italy, and Nuvolari's CEO and senior partner signed the relevant design agreement in that country. See Nuvolari-Duodo Supp. Decl. ¶¶7, 13. There is no suggestion that Nuvolari entered into a contract to supply goods or services in New York, or that it contemplated doing so. See N.Y.C.P.L.R. §302(a)( 1). And there is no indication that Carver or Genmar acted as Nuvolari's agent in New York.

Nor can personal jurisdiction be premised on either Section 302(a)(2) or 302(a)(3)(ii). The former section is unavailing because any tortious act or failure to act on Nuvolari's part took place in Italy, where the boat was designed. Conduct occurring outside of New York cannot be the basis for the exercise of personal jurisdiction under that portion of the statute. See Bensusan Rest Corp. v. King, 126 F.3 d 25, 28 (2d Cir. 1997). And the latter section does not provide a basis for the exercise of personal jurisdiction; Nuvolari had no reason to think that provision of a design or design advice to a yacht manufacturer whose principal place of business was outside of New York would have consequences in this state. See N.Y.C.P.L.R. §302(a)(3)(ii). The court takes judicial notice of the fact that vessels manufactured in Wisconsin — as was the Brianna — can have access to the seven seas without passing through New York.

And even assuming without deciding that the exercise of personal jurisdiction over Nuvolari would be appropriate under Section 302(a)(3)(i) — based on the allegation that Nuvolari received some $30,000 for its design of the Brianna, see Lee Aff. ¶36-the constitutional guarantee of due process prohibits the exercise of' personal jurisdiction on that basis. (The derivation of revenue by Nuvolari for the design of the vessel is the only basis that might suffice

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to allow for the exercise of personal jurisdiction under the long-arm statute; Nuvolari did not regularly conduct business or solicit business in New York, or engage in a persistent course of conduct in the state. See Nuvolari-Duodo Supp. Decl. ¶7.) Due process bars the exercise of personal jurisdiction over Nuvolari since it did not take advantage of benefits provided by the State of New York, nor was it contemplated that it would do so. See id. ¶¶7-11; see also, e.g., J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2788 (2011) (plurality opinion).

B. Rule 4(k)(2) of the Federal Rules of Civil Procedure

The exercise of personal jurisdiction pursuant to Federal Rule of Civil Procedure 4(k)(2) is inappropriate in this case. Based upon the present record, it appears that Nuvolari is subject to personal jurisdiction In Florida, since both of the company's founders have traveled to that state numerous times with the purpose of promoting the company's designs at boat shows. Nuvolari-Duodo Supp. Decl. ¶32; see Fla. Stat. Ann. §48.193(2).

V. Conclusion

Nuvolari's motion to dismiss the claims of Lyons and Rienzi against it for lack of personal jurisdiction is granted. The result is not entirely satisfying to a plaintiff seeking relief in a liability suit based upon allegations of defects in a product designed, produced, and sold in different states and nations. See, e.g., Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders 324 (2012). But for the moment it is based upon applicable law in this state and nation.

Costs and disbursements to Nuvolari.

SO ORDERED

The previous 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 New York or Italian legal matter. Furthermore, this Italian-New York 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.

In rendering its decision, the New York Family Court specifically took into consideration the undisputed fact that the Italian father had previously obtained an Italian Order from a Florence Court which had awarded him sole custody of the parties’ child. The New York Court found that the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") applied to this Italian family law matter. Therefore, the New York Court stated the Italian Custody Order must be treated in the same manner as if it were issued by a State of the United States. The New York Family Court stated in relevant part:

“Because the Italian courts issued the initial custody order, Italy possesses exclusive, continuing jurisdiction. The ensuing and numerous subsequent orders by the Italian courts, both trial and appellate, should properly be viewed as modifications of the initial Italian order. The Italian courts had continuous, exclusive jurisdiction to modify the original Italian order because the father has been a continuous resident of Italy since the year 2000, notwithstanding the mother’s and child’s primary residence in New York between 2006 and 2010.”

The full text of the case was as follows:

In the Matter of Maura B. v. Giovanni P., [Index Number Redacted by Court], New York County Family Court

Decided: February 7, 2012

I. ISSUE

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In this international custody dispute, the petitioner mother asks this court to assert jurisdiction and ultimately determine that she should have sole legal and residential custody of the subject child. The respondent father argues that this court lacks jurisdiction to modify prior Italian court orders, and further seeks enforcement of the latest order issued by the Italian courts.

The basic legal issue concerns the international application of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), contained in Domestic Relations Law ("DRL") Article 5-A, to the historical circumstances of this case.

II. HISTORY AND BACKGROUND

The procedural history relevant to the jurisdictional issue, although convoluted, is largely undisputed:¹

The mother, Maura B., is an Italian citizen and also a permanent resident of the United States. The father, Giovanni P., is a dual United States and Italian citizen. The subject child, C., born in the United States on March 22, 1999, is a dual United States and Italian citizen.

The parents and child lived together in Italy from 2000 to 2005, when they separated. On June 29, 2005, the Court of Florence, after proceedings, issued an order awarding sole custody to the mother, and detailed a visitation schedule for the father. (The order also provided for legal marital separation, child support, and an award of the marital residence.)

In June, 2006, the mother relocated to New York with C. The mother (a psychiatrist, as is the father) obtained academic employment at Columbia University. The child was enrolled in school in Manhattan, and mother and child continuously lived in New York City until the summer of 2010. The father has remained a resident of Italy since 2000.

On October 24, 2006, a different judge in Florence re-addressed the case, disapproving of the mother’s unilateral relocation to New York but also noting the mother’s serious allegations of violence by the father towards her and the child. That judge issued a new order stating that residential custody shall remain with the mother and modified the visitation schedule for the father to take into account the mother’s relocation with the child to New York. The father appealed.

On March 29, 2007, a panel of the Court of Florence reviewed the prior orders. In a decision and order the panel: re-confirmed that residential custody would remain with the mother despite her continued presence with the child in New York; noted that it was unclear how long the stay abroad might be, and that if extended it may need to be further reviewed at a later point; modified the father’s visitation schedule; and held that a change in Italian law required that the parents have joint legal custody.²

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On September 17, 2009, the Court of Pisa, after a hearing on the father’s application for a change of custody, denied his request, noting that the child was doing well living with her mother in the United States and that a "radical" relocation back to Italy might have negative consequences.

On May 3, 2010, the Court of Pisa again continued primary residential custody with the mother in the United States, set another visitation schedule for the father, reiterated the child’s strong and positive integration and ties in the United States, and further cited the opinion of a court-appointed clinician that uprooting the child could be damaging.

In the summer of 2010, pursuant to the existing Italian visitation order, the child visited her father in Italy. In the father’s own words in papers filed with this court, he stated that at the end of August 2010 "…C. decided to remain with me in Italy. While I tried to persuade C. to return to the United States, in accordance with the [order], C. refused to return to her mother’s residence. I enrolled C. in school in Italy…."

On September 17, 2010, the Court of Pisa rejected yet another application by the father for a change in custody. The court noted but gave little weight to the child’s stated preference to remain in Italy, observing that she commonly said this when having to return to her mother, but was happy and well-adjusted in the United States.

On October 1, 2010, the Appellate Court of Florence, after reviewing the prior orders, denied the father’s appeal and observed that the child’s wish to stay with her father occurred for no particular reason other than that she was with her father at that time, and that her lengthy residence in the United States should not be interrupted. However, the court scheduled a further hearing for late November.

Subsequently, on November 5, 2010, the Court of Pisa, acting to enforce its prior order in the face of the father’s retention of C., ordered Italian officials to assist in returning the child to the mother so that both could return to New York. In accordance with that order the mother, now in Italy, on November 16, 2010, went to pick up the child at her school. The father also arrived at the school, and a struggle ensued in the course of which the child received a bruise.

After the school incident, the Appellate Court ordered a forensic evaluation of the family. The mother told the court that she would maintain the status quo, that is, the child would remain in Italy pending completion of the evaluation. The mother claims the reason she agreed to forensics was that the exam was the only way she could see her child whose access was being denied by the father.

On March 8, 2011, prior to the Appellate Court rendering a decision and prior to the final issuance of the forensic evaluation reports, the mother went to the maternal grandfather’s Italian residence and secured physical custody of C. A few days later, on March 13, 2011, the mother removed the child from Italy, both returning to New York where they continue to reside to this day.

On May 13, 2011, the Appellate Court of Florence issued a lengthy decision and order that

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modified the Court of Pisa orders. The Appellate Court awarded sole custody to the father and provided for visitation for the mother.³ The decision relied heavily on two factors, first, the forensic evaluations, and second, the mother’s behavior in Italy in the months following the father’s retention of the child. The court reviewed the forensics in detail, and accepted the opinion of the court-ordered expert that the mother was alienating the child from the father and that the child strongly and repeatedly wished to remain in Italy with her father. (The mother’s retained expert disputed this opinion, arguing to the contrary that there was no alienation, but simply the common wish of a child on vacation with a non-residential parent to remain with that parent.)⁴ The Court also strongly disapproved of the mother’s behavior during her attempts to retrieve the child on November 16th and March 8th, and, not surprisingly, was very displeased by the mother leaving Italy with the child on March 13th, after representing to the court that she would not do so.⁵

III. LEGAL FRAMEWORK

UCCJEA section 75-d specifically requires the New York courts to treat a foreign country as if it were a state of the United States: that is, basic UCCJEA sections and provisions such as initial jurisdiction; the home state predicate; exclusive continuing jurisdiction; modification jurisdiction; simultaneous proceedings; communication between courts; as well as recognition and enforcement of foreign decrees, apply to most New York custody matters involving other states and foreign countries.

Generally, jurisdiction to make an initial child custody jurisdiction is based on the state, or foreign country, being the home state, that is, where the child lived with a parent for six consecutive months prior to the first custody proceeding. DRL sections 75-a and 76.

DRL sections 76-a and 76-b address modifications of initial (original) custody determinations: Section 76-a essentially provides that the jurisdiction that made the initial custody determination has "exclusive, continuing jurisdiction over the determination" unless that jurisdiction determines that there is no longer a significant connection with and evidence in that jurisdiction, or a court of either jurisdiction determines that neither the child and any parent reside in the jurisdiction that made the original determination.

Section 76-b entitled "Jurisdiction to modify determination" provides that:

[A] court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under…section seventy-six of this title and:

1. The court of the other state determines that it no longer has exclusive, continuing jurisdiction under section seventy-six-a of this title or that a court of this state would be a more convenient forum under section seventy-six-f of this title; or

2. A court of this state or a court of the other state determines that the child [and] the child’s parents do not presently reside in the other state.

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The remaining relevant UCCEA sections in the DRL involve section 76-f setting forth variables that relate to an inconvenient forum analysis; section 76-i mandating or encouraging communication between states to help resolve jurisdictional issues; and sections 77-b, 77-d, and 77-e providing for a New York duty to enforce valid, registered foreign custody decrees as if they were the same as New York orders (unless an objection that the issuing court did not have jurisdiction is sustained).

IV. ANALYSIS

It is undisputed that Italy issued the initial custody determination in this case. That initial order was the June 29, 2005, order by the Court of Florence noted above that granted the mother sole custody of the child. The mother suggests that the October 24, 2006, order by the Court of Florence permitting her to continue to reside in New York may be the controlling initial custody order. Regardless of whether the 2005 or the 2006 order is said to be the initial order, it is also undisputed that at the time the Court of Florence issued its initial order the court had valid jurisdiction under Italian law, and that the order also was consistent with the provisions of New York’s UCCJEA.

The various applicable sections of the UCCJEA, noted above, are interlocking which can be a source of complication. For a good review of the sections, see generally Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law Article 5-A (2010) ("Commentaries"). Even though the procedural history of this case is lengthy, the application of the basic principles of the UCCJEA is clear:

Because the Italian courts issued the initial custody order, Italy possesses exclusive, continuing jurisdiction. The ensuing and numerous subsequent orders by the Italian courts, both trial and appellate, should properly be viewed as modifications of the initial Italian order. The Italian courts had continuous, exclusive jurisdiction to modify the original Italian order because the father has been a continuous resident of Italy since the year 2000, notwithstanding the mother’s and child’s primary residence in New York between 2006 and 2010.

The combined effect of DRL sections 76-a and 76-b is aptly summarized, with some repetition, in the Commentaries at pp. 499 — 507:

Only the state [or foreign country] which entered the original custody order can determine whether to surrender exclusive continuing jurisdiction. It maintains a monopoly….When a different state [or foreign country] possesses exclusive jurisdiction New York cannot take jurisdiction unless the foreign state declines, even though the parties clearly no longer have a significant connection with that state and there is an absence of relevant evidence in the foreign forum….There is no recourse when a recalcitrant state refuses to yield….[A] state which maintains exclusive, continuing jurisdiction may entertain and determine a modification action. No ifs, ands, or buts….[I]f one parent or the child is a resident of the [foreign] country which issued the initial decree, or when relevant, the last modification, New York cannot accept jurisdiction unless the country in question declines.

It must be emphasized that to this date New York has never issued a custody determination in

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the instant case; Italy is the only jurisdiction that has issued custody orders.⁶

The only way New York could assume jurisdiction in this case is if Italy declines jurisdiction. Accordingly, pursuant to DRL section 75-i, on August 18, 2011, this court wrote a detailed letter to Luigi Grimaldi, the Presiding Judge of the Appellate Court of Florence, the court that issued the May 13, 2011 decision and order awarding custody to the father, asking whether the Italian courts would consider declining jurisdiction for any reason, including the ground of inconvenient forum. Judge Grimaldi responded on September 15, 2011, stating that Italy would not decline jurisdiction. Judge Grimaldi said, inter alia, that "…our courts were the first to assume responsibility for the case and likewise because this child has lived in Italy for most of her life….⁷

The Commentaries at pp. 501-502 note that a declination of jurisdiction is common in the United States when the child and custodial parent have lived in a different state or country for some time, as is the circumstance here where mother and child resided in New York between 2006 and 2010. Yet it also true that as Sobie notes at p. 502, a refusal to decline jurisdiction when circumstances otherwise warrant may be "inequitable" but the result would stand under the UCCJEA. As late as November 1, 2010, the Appellate Court of Florence denied the father’s appeal for a change of custody citing the "…years of residing with the mother…." among other reasons. Nonetheless, only seven months later the Appellate Court reversed itself and awarded custody to the father on May 13, 2011.

Consequently, the merits of the May 13, 2011, Italian decision and order are quite troublesome given the child’s prior lengthy and apparently very satisfactory residential custody with the mother.⁸ Whether it is inequitable is arguable. The intervening events involving the mother’s conduct in Italy after November 1, 2010 — on November 16, 2010, on March 8, 2011, and on March 13, 2011, when she left Italy with the child, as well as the forensic evaluations as described by the court — had a major effect on the views of the Appellate Court of Florence. And, however much one may disagree with the result, one can not say that the Appellate Court did not carefully detail its reasoning in its twenty-six page decision on May 13, 2011.

That said, the merits of the May 13, 2011 Appellate Court of Florence decision are not the relevant variable before this court. The issue of jurisdiction is the sole issue before this court.

The mother argues that although Italy issued the initial custody determination on October 24, 2007, New York became the child’s home state six months later, that is, from April 27, 2007 to the present (a fact not affected by the father’s wrongful retention of the child in the fall of 2010). Therefore, the mother says, Italy lacked jurisdiction after April, 2007, and its orders, including the May 13, 2011, order awarding the father custody are invalid.

The mother’s argument is incorrect and would have the effect of eviscerating the provisions of DRL sections 76-a and 76-b, supra, concerning exclusive continuing jurisdiction and modification jurisdiction. Her argument conflates "home state" to make an initial child custody jurisdiction (DRL section 76) with "home state" defined to mean any six month period where the child later continuously lived. It is the former home state definition the controls.

*6

The mother relies on In re McC. v. Manuel A., 48 AD3d 91 (1st Dept. 2007). In that case, also involving Italy, a divided court opined on issues of home state and exclusive continuing jurisdiction. The case is reviewed in the Commentaries, supra, at 506-507. Because of its complex fact circumstances, the precedential value of this case to the instant case is, at most, unclear. More to the point regarding continuing and modification jurisdiction are Stocker v. Sheehan, 13 AD3d (1st Dept. 2004) and Grahm v. Grahm, 13 AD3d 324 (1st Dept. 2004), clearly indicating why there is no subject matter jurisdiction in this case.

For the foregoing reasons, this court is constrained to decide that New York currently does not have jurisdiction to entertain the mother’s new or modification custody petitions, and such petitions are therefore dismissed.

Further, this court has a duty to enforce the registered May 13, 2011 order of the Appellate Court of Florence. See DRL sections 77-b and 77-d. The mother’s objection to registering the order is denied. Consequently, in accordance with that order, this court is required to so order a transfer of physical and legal custody to the father. It is hoped that the parties, their counsel, and counsel for the child can arrange for an orderly transition consistent with the best interests of the child.

Given the historical circumstances of this case, the orders of this court are stayed until c/o/b February 22, 2012, so that any party or the subject child may seek appellate relief.

1. 143 exhibits were admitted in evidence by stipulation, and are listed in a 27 page document signed by counsel containing a date and summary of the nature of the exhibit. Many of the exhibits are court documents/orders, but there are also letters, e-mails, affidavits, police reports, forensic reports, etc.

2. The March 29, 2007, Italian order was subsequently registered in New York on October 15, 2007. See DRL section 77-d.

3. The May 13, 2011, Italian order was subsequently registered in New York by New York County Family Court on August 30, 2011. The mother is contesting the validity of this registration on jurisdictional grounds. See DRL section 77-d(4)(a).

4. The mother’s expert also referred to the father’s "seductive" behavior in persuading his daughter to remain with him after the vacation period ended.

On September 8, 2010, a Dr. Gabrielle Silver, an Assistant Professor of Psychiatry at Payne-Whitney (Cornell) in Manhattan, who treated C. in 2007 and 2009-2010, issued a report stating that the child was doing very well in New York; that the child said she was consistently happy in New York and that her New York home was "warm and loving", including a good relationship with her mother and sister; and that the doctor was surprised at any indication that the child did not want to return to the United States, a development called "concerning". This report was not noted in the May 13, 2011, Appellate Court decision notwithstanding its extensive discussion of the forensics conducted in Italy.

Interestingly, regarding the "alienation" by the mother emphasized by the Appellate Court, were a serious of emails/ text messages from the father to the child in September, 2011, when the child continued to reside with the mother in New York. Among the excerpts include: "…you have to make a lot of confusion or the judge could decide to leave you where you start the school. Don’t go to school or do something really big….You have to tell everyone that [your mother] is mean and that she stops you from seeing your father and your sister!….If you say that [your mother] maltreats you they will send you back to me….Say that you prefer to stay with someone else rather than your mother…."

5. The November 16th and March 8th incidents had in common the mother’s efforts to retrieve her daughter and remove her from her current living situation. There were witnesses to both incidents and police officials became involved. The Appellate Court concluded from the evidence that during each incident the mother’s behavior was forceful, inappropriate, and contrary to the child’s expressed wishes. Conversely, the mother had a more benign view of her motivation and behavior.

The preliminary, final, and rebuttal forensic reports were all dated in April, 2011. The mother makes the somewhat arcane point that although she did leave Italy with the child in March, 2011, all the forensic "data" had already been "collected" and therefore she "…did not remove C. from Italy prior to the forensics being completed".

6. The sole exception is that in the summer of 2007 another judge of this court, acting under the DRL section 76-c "Temporary emergency jurisdiction" provision, temporarily suspended the father’s visits, which order was followed by a consent order to modify the summer visitation schedule. These changes were in effect only for that summer. As is well known, and noted in the Commentaries at p. 516"…emergency jurisdiction is temporary. The intent is to permit intervention by a court which would otherwise lack jurisdiction, pending initiation of proceedings in a court which possesses permanent jurisdiction".

In addition, as is customary, the court issued orders during the pendency of this proceeding to preserve the status quo.

7. The latter part of this statement appears to be inaccurate: the record indicates the child spent roughly half her life in Italy and the other half in the United States. Moreover, the more recent half of her life was spent in the United States.

8. See note 4, supra

The above mentioned  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.

In light of the fact obtaining jurisdiction over a defendant in a foreign jurisdiction can be quite challenging in some  signatory nations, this departure from the previous standard  which disallowed service by mail will substantially improve the plaintiff’s ability to obtain jurisdiction  over a foreign defendant.(See Hague Service of Process over an Italian company or person)

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.

The text of the decision  can be found here:  New York State Thruway Authority v. Frenech

            As a result of this Italian maritime disaster, 11 people have been confirmed dead and more than 20 remain missing. As a consequence of the mismanagement, disorganization and lack of emergency preparation on the part of the cruise company (Costa), the passenger disembarkation was total chaos. Few lifeboats were properly utilized, forcing many passengers to jump off the ship and swim to safety. Further, it appeared to many of the passengers that the crew members were ill prepared and untrained.

            This type of maritime disaster is a classic case of gross negligence by the cruise liner. Under Italian maritime law and civil law, the Costa Cruise company owed a legal duty to each of passengers to provide for their safety in the event of an accident. The actions and inactions of the Costa cruise company and employees will be investigated in the coming months by the Prosecutor. Costa Concordia Passengers will likely have legal claims against the Costa Cruise company for the loss of services, damages for the ruined holiday, loss of property, recovery of the personal injuries and mental and emotional trauma they suffered as a result of this travesty.

           If you or some you know was involved in this Italian cruise catastrophe and is seeking to make a claim for the recovery of your losses, it is important you seek Italian legal counsel as soon as possible to avoid  preservation of evidence and the statute of limitations issues.  The Italian legal system provides two methods for injured passengers to file a complaint. Under Italian law, each injured Costa Concordia cruise ship passenger may file a criminal complaint, a civil complaint or both.

          The US –Italian law firm of Marzano & Sediva has offices in both New York and Italy and is well prepared to aggressively represent Italian and American passengers recently injured on the Italian  Costa Concordia  Cruise. Lawyers in the Italian US firm remain available for any inquiries regarding your legal rights in the wake of this disaster.

Please contact our office for a free consultation at 646-225-6549, by email at sediva@marzanolaw.com or on our website at www.marzanolaw.com.

See:

NYT WORLD

Divorce Tourists Go Abroad to Quickly Dissolve Their Italian Marriages
By ELISABETTA POVOLEDO
Published: August 14, 2011

Italians seeking a quick and inexpensive divorce are now going abroad to Romania, Britain and France to avoid the complicated process of divorce in Italy.

http://www.nytimes.com/2011/08/15/world/europe/15italy.html

Please be advised this article is being provided for informational purposes only This article is not intended to provide, and should not be relied on as a source of, legal advice. Marzano & Sediva expressly disclaims all liability based on any information contained in this article

1-4-12 WSJ: How Italy’s Taxes Could Boost NYC Real Estate

Please be advised this article is being provided for informational purposes only This article is not intended to provide, and should not be relied on as a source of, legal advice. Marzano & Sediva expressly disclaims all liability based on any information contained in this article.

An Italian lawsuit is a civil action brought in an Italian Court in which a plaintiff (called ‘attore’) demands a legal remedy for a loss resulting from a defendant (called ‘convenuto’) action.

The Italian civil lawsuit is regulated by the Italian Civil Procedural Code (‘Codice di procedura civile’)

It can be started by filing a summons and complaint or a recourse, depending on the matters of the dispute. The summons and complaint is the ordinary mean to bring a civil action.

Before bringing the action before the Italian Court, the plaintiff must serve the summons and complaint (called ‘atto di citazione’ or just ‘citazione’) summoning the defendant to appear before the competent Italian Judge in a determined hearing to be held.

The summons and complaint must be served by an official bailiff (called ‘Ufficiale Giudiziario’).

After service of the initiating documents, the plaintiff must file the served summons and complaint in the Clerk’s Office in the competent Court of jurisdiction.

The Italian legal order provides for two different Courts of first instance depending on the matters and the value of the dispute:

- The Italian Giudice di Pace (literally ‘Justice of the Peace’), sitting as a sole judge.

- The Italian Tribunale, sitting as a sole judge - in most of the cases - or as a collective, depending on the matter of the dispute.

The Italian Justice of the Peace is an honorary judge with competence on determined and less important matters provided by the civil procedural code: by the way of an example, dispute whose value is lower than €5,000; car accidents up to €20,000.

The Italian Tribunal has a broader and residual jurisdiction, having competence on all the disputes beyond the competence of the Italian Justice of the Peace. In substance, the Italian Tribunal is almost always competent notwithstanding those cases assigned to the Justice of the Peace by law.

If the Italian lawsuit must be started by recourse, because law so requires (e.g. in case of labor lawsuits), it must be filed before the competent Italian Court requiring the Judge to fix a hearing and then the plaintiff must serve the recourse and the Judge’s decree fixing the hearing to the defendant.

During the lawsuit, the plaintiff must give the evidence of his right and the defendant is required to respond to the plaintiff's complaint.

If the plaintiff is successful, an Italian judgment (called ‘sentenza’) will be given in the plaintiff's favor, enforcing his right, or awarding damages, imposing injunctions to prevent an act or compel an act.

The Italian decision of first instance is generally automatically and provisionally enforceable.

After the final decision has been granted, either party or both may appeal from the judgment of the judge of first instance; even the prevailing party may appeal, if, for example, prevailing party wanted a larger award than the one which was granted.

The parties may appeal a judgment granted by the Italian Justice of the Peace before the Italian Tribunal, and a Italian judgment granted by the Italian Tribunal before the Court of Appeals (‘Corte d’Appello’).

The Italian Court of Appeals sits as a collective body. Any Justice of the Peace and Tribunal is included in a determined Italian District of Court of Appeals.

The procedure to bring the action before the Italian Court of Appeals is similar to the procedure followed in the proceedings of first instance.

After the final decision has been made by the Italian Court of Appeals, either party or both may appeal the judgment before the Italian Supreme Court of Cassation (‘Corte di Cassazione’) in Rome.

The Italian Court of Cassation ensures the observation and the correct interpretation of Italian law by ensuring the same application of law in the inferior and appeal courts. Appeals to the Italian Court of Cassation can be just brought as a matter of right, as the Court is precluded to get to the heart of the matter.

Appeals to the Italian Court of Cassation generally come from the Italian Courts of Appeals, but litigants may also appeal directly from the judge of first instance.

When the lawsuit has finally been resolved, or the allotted time to file an appeal has expired, the matter is res judicata.

See: http://marzanolaw.com/lawyer/New_York_City_and_Salerno_Italy_fq524.htm

Please be advised this article is being provided for informational purposes only This article is not intended to provide, and should not be relied on as a source of, legal advice. Marzano & Sediva expressly disclaims all liability based on any information contained in this article.

Decided on July 8, 2011

SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ.

IN THE MATTER OF PIETRO RUSSO, PETITIONER-RESPONDENT,

v

NICOLE CARMEL, RESPONDENT-APPELLANT.

Appeal from an order of the Family Court, Ontario County (Stephen D. Aronson, A.J.), entered October 28, 2010 in a proceeding pursuant to Family Court Act article 6. The order, insofar as appealed from, granted petitioner permission to travel to Italy with the child.

It is hereby ORDERED that the order so appealed from is unanimously modified as a matter of discretion in the interest of justice by vacating the restriction that the trip shall occur in the spring of 2011 and by instead providing that the trip shall not occur between the dates of December 23 through December 26, no matter the year in which the trip occurs, and as modified the order is affirmed without costs.

Memorandum: Petitioner father commenced this proceeding seeking joint custody and expanded visitation, and respondent mother cross-petitioned to reduce the father's overnight visitation. The parties thereafter entered into a stipulation resolving those issues, however, and they agreed that Family Court would rule on the father's request to travel to Italy with the parties' child to visit the father's parents and other relatives who reside there. The mother now contends that the court erred in permitting the father to travel to Italy for a period of not more than 15 days on 60 days' notice to the mother. Although the mother is correct that the court failed to set forth the facts it deemed essential in permitting the child to travel with the father to Italy (see CPLR 4213 [b]), the record is sufficient to enable us to make those findings (see Matter of Dubuque v Bremiller, 79 AD3d 1743). We thus reject the mother's contention that the matter must be remitted to Family Court to make those findings (cf. Matter of Rocco v Rocco, 78 AD3d 1670).

The record establishes that, although the father's visitation with the child is limited to a maximum of 48 hours at a given time, the father has a close bond with her and, during visitation, he prepares her meals, bathes her, administers medication as necessary and takes her on outings. Further, the mother did not express any concerns that the father would abscond with the child (cf. Matter of Ish-Shalom v Wittmann, 19 AD3d 493, 494; see generally Puran v Murray, 37 AD3d 472). Instead, the mother opposed the father's request on the ground that the two-year-old child had never been away from the mother for more than 48 hours and would be in an unfamiliar [*2]environment with relatives who were unknown to the child. We conclude that the mother's concerns in opposition to the request do not warrant a denial of the father's request. Indeed, we conclude that it is in the best interests of the child to travel with the father to Italy to meet her extended family (see generally Puran, 37 AD3d 472). Inasmuch as the order provides that the trip shall occur in the spring of 2011 and this Court stayed the order, we modify the order by vacating that restriction. We further modify the order to provide that the trip shall not occur between the dates of December 23 and December 26, without regard to the year in which the trip occurs.
Entered: July 8, 2011

.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

*1

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

*2

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).

*3

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.

*4

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

*5

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

*6

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

*7

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

*8

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

*9

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

*10

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.

Lydia Scheck and Dieter Scheck, Plaintiffs v. The Republic of Argentina, Defendant, 10 Civ. 5167 (TPG)

U.S. District Court, Southern District

Civil Practice

District Judge Thomas P. Griesa

Decided: May 23, 2011

OPINION

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Plaintiffs are two German citizens who claim to have obtained six money judgments each against the Republic of Argentina (the "Republic") in a German court, based on their ownership of defaulted Republic-issued German bonds. In this action, plaintiffs seek to enforce their German judgments. Plaintiffs filed a motion for summary judgment in September 2010, but the court placed it in abeyance pending completion of service of process pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, 20 U.S.T. 361, at *1.

Plaintiffs now renew their motion for summary judgment. They also argue that a default judgment against the Republic should be entered.

The purpose of this opinion is to explain that service of process has been accomplished. Briefing on plaintiffs' motion for summary judgment

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should now be completed, so that this motion can be decided. The court declines to enter a default judgment.

Background

On July 6, 2010 plaintiffs commenced the present action seeking recognition and enforcement of the German judgments. Plaintiffs allege that their German judgments against the Republic are "final, conclusive and enforceable where rendered," making them enforceable in this jurisdiction pursuant to the Uniform Foreign Country Money Judgments Recognition Act, N.Y. C.P.L.R. §5302.

The terms and conditions for the German bond series at issue designate an authorized agent for service of process in Germany for suits brought in Germany. The documents do not provide an authorized agent for service of process in the United States, or for suits brought in the United States.

Nevertheless, on July 15, plaintiffs attempted to deliver the summons and complaint to the Vice President of Banco de la Nación Argentina in New York ("BNA"), the authorized agent for service of process for claims brought on U.S. bonds. Then, on August 17, 2010, plaintiffs, by means of Process Service Network LLC, sent a copy of the summons and complaint, and other required forms, to the central authority designated by the Republic for service of process pursuant to Article 2 of the Hague Service Convention—the Argentine Ministry of Foreign Affairs (the "Ministry").

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On September 13, 2010, the Republic moved to dismiss the complaint for lack of personal jurisdiction and insufficient service of process. On September 27, 2010, plaintiffs moved for summary judgment.

On October 7, 2010, the parties' entered into a stipulation, which was so ordered by the court, as follows: (1) the motion to dismiss is denied as moot; (2) the complaint and motion for summary judgment are held in abeyance pending the completion of service as required by the Hague Service Convention; and (3) the Republic shall answer, move to dismiss, or otherwise respond to the complaint and motion for summary judgment on or before 60 days after the completion of service of the complaint on the Republic.

On February 7, 2011, plaintiffs' process server contacted the Republic's Consul General in Los Angeles and was told four days later that there were problems. On February 11, 2011, plaintiffs' process server sent an agent to the Ministry to inquire about the status of process. The Ministry told the agent that the service was "in process." Plaintiffs have not yet received a certificate of service or delivery.

Discussion

Service of Process

Pursuant to Fed. R. Civ. P. 4(j)(1), the Foreign Sovereign Immunities Act (the "FSIA"), 28 U.S.C. §1608(a), sets out the requirements for service of process on a foreign state:

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a) Service in the courts of the United States and of the States shall be made upon a foreign state or political subdivision of a foreign state:

(1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision; or

(2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents…

As the governing documents do not provide for an authorized agent for service of process for a suit on the German bonds in the United States, the second paragraph applies. The applicable international convention here is the Hague Service Convention (the "Convention"), which the United States, Germany, and Argentina have all ratified.

Proper service of process pursuant to the Convention requires several steps. Plaintiffs must first transmit the service request and accompanying documents to a foreign state's designated central authority. Convention, Articles 2 and 3. The Republic's designated central authority is the Argentine Ministry of Foreign Affairs (the "Ministry"). The request must comply with the form annexed to the Convention, also referred to in the Convention as the "model," hereafter referred to by the court as the "request form." Id. at Art. 3. Article 3 addresses the form that the request for service of process must take:

The authority or judicial officer competent under the law of the State in which the documents

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originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality.

The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate.

The request form requires the applicant to state its name and address, the address of the receiving authority, and the address of the person or entity to be served. The request form also requires the applicant to select the method of service for the designated central authority to use in serving that person or entity, pursuant to Article 5 of the Convention. There are three options:

(a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory;

(b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed; or

(c) by delivery to the addressee, if the addressee accepts it voluntarily.

The request form must list the documents to be served, and requires that the form bear a signature and/or stamp.

If the central authority determines that the request does not comply with the provisions of the Convention, it must promptly inform the applicant of its objections to the request. Id. at Art. 4. If there are no issues of compliance, the designated central authority must then serve,

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or arrange to have an authorized party serve, the documents on the defendant. Id. at Art. 5. In order for service of process to be considered complete, the plaintiff must receive a certificate of service from the designated central authority pursuant to Section 1608(c)(2) of the FSIA and Article 6 of the Convention.

Article 15 of the Convention allows a court to obtain jurisdiction over a foreign defendant for purposes of giving judgment when a plaintiff has not received a certificate of service or delivery if:

(a) The document was transmitted by one of the methods provided for in this Convention,

(b) A period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,

(c) No certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

See In re South African Apartheid Litigation, 643 F. Supp. 2d 423, 433 (S.D.N.Y. 2009).

Plaintiffs completed the first step by delivering the service request form and required accompanying documents for service of process to the Ministry on August 17, 2010. Such documents included a copy of the summons issued by this court on July 6, 2010, and the complaint in English and a copy in Spanish translation. On the request form, plaintiffs selected two possible methods for the Ministry to use to serve

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the Republic, options (a) and (c), as discussed above. Plaintiffs also apparently signed the form.

The Republic argues that service of process remains incomplete because the required service forms plaintiffs submitted to the Ministry are defective. The Republic refers the court to a letter from the Ministry to counsel for plaintiffs sent January 11, 2011. The Ministry wrote that the service papers were defective for two reasons. First, plaintiffs selected two methods for service on the Republic on the request form, instead of just one. The Ministry claims that, under Argentine legislation, the request is defective because "the court that would intervene must address the notice of service with reference to one of such procedures (one or the other), because the items a) and c) provide for methods of service of process that are different, and are therefore exclusive of each other." Second, the signature on the form was not an original. The Ministry claims that this is a "formal issue" that prevents the Ministry from moving forward.

The court rules that the objection to plaintiffs' selection of two service methods is invalid and frivolous. The Ministry could have served the documents by either method.

The court also rules that the objection to the copy of the signature on the form is invalid. There is no requirement that the form bear an original signature. Indeed, the Convention states that a stamp would be proper.

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Although plaintiffs have not yet received a certificate of service, the court is entitled to assert jurisdiction over the Republic because plaintiffs have satisfied the Article 15 requirements. Plaintiffs properly transmitted the documents to the Ministry more than nine months ago, and no certificate of any kind has been received even though plaintiffs made every reasonable effort to obtain it by contacting the Ministry in Argentina.

The court concludes that there was proper service of process.

Further Proceedings

Pursuant to the stipulation of October 7,2010, the Republic will answer, move to dismiss, or otherwise respond to the complaint and motion for summary judgment. The stipulation gave the Republic 60 days after completion of service. This is now amended so that 60 days runs from the time of the present opinion.

The record shows no basis for entry of a default judgment against the Republic.

This opinion resolves document number 19 listed on the docket.

SO ORDERED.