Rajpurohit v. Rajpurohit

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Bennett, J.), dated July 1, 2013, as denied those branches of his cross motion which were to dismiss the action for failure to comply with the durational residency requirements of Domestic Relations Law § 230, pursuant to CPLR 3211 (a) (2) and (4) for lack of personal jurisdiction, and on the ground that another action is pending between the same parties for “similar relief” in another jurisdiction, respectively, and pursuant to CPLR 327 on the ground of forum non conveniens.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff and the defendant were married in India in 1994 and had a daughter who was born in India. After approximately three years of marriage, the defendant moved to the United States. A few months later, the plaintiff and the child came to the United States with the intention of remaining with the defendant. The family allegedly lived together in New York for approximately one month. The plaintiff and the child then returned to India. In 2001, and again in 2010, the defendant commenced divorce actions in India, which were dismissed.

In 2012, the plaintiff came to New York and commenced the

The Supreme Court properly denied that branch of the defendant’s cross motion which was to dismiss the action on the ground that the durational residency requirements of Domestic Relations Law § 230 had not been met. Here, the plaintiffs allegations that the defendant was domiciled or resided in New York for “a continuous period of at least two years immediately preceding the commencement of the action” (Domestic Relations Law § 230 [5]) were sufficient, and the defendant failed to show that he has changed his New York domicile (see Unanue v Unanue, 141 AD2d 31 , 39 [1988]; Silvers v Silvers, 57 AD2d 948 [1977]).

Furthermore, the Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 327 to dismiss the action on the ground of forum non conveniens. The defendant has failed to demonstrate that New York is an inconvenient forum (see Kefalas v Rontogiannis, 44 AD3d 624 , 625 [2007]). Nor has he shown that a viable alternative forum exists (see Highgate Pictures v De Paul, 153 AD2d 126 [1990]).

Moreover, the Supreme Court properly denied that branch of the defendant’s motion which was to dismiss the action on the ground that the plaintiff has similar actions pending in India. Pursuant to CPLR 3211 (a) (4), “in order to sustain a claim that another action is pending . . . the movant must establish that the other action was commenced first” (Reckson Assoc. Realty Corp. v Blasland, Bouck & Lee, 230 AD2d 723 , 725 [1996]). Here, the defendant did not annex any documentation to substantiate his claim that there is a divorce action pending in India that the plaintiff commenced prior to the commencement of this action.

Finally, the Supreme Court properly denied that branch of

Skelos, J.E, Dickerson, Maltese and LaSalle, JJ., concur.