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Plaintiff Moves for Motion to Dismiss for Failure to File Timely Complaint

 

The defendant moves by order to show cause for the following relief: for an order pursuant to CPLR §§ 327 and 3012(b) as follows: a) granting defendant dismissal of this action by virtue of the plaintiff’s failure to timely serve a complaint; b) granting defendant a dismissal of this action on the ground that this court does not have jurisdiction over his person which has not resided in New York since 1999; c) granting defendant a dismissal of this action on the ground of forum non conveniens in light of the Brazilian action pending since 2002; d) in the alternative, granting defendant a stay of these proceedings pending completion of the 2002 Brazilian action.

In this matrimonial action, the defendant is a Brazilian citizen while plaintiff enjoys dual citizenship with the United States and Brazil. The parties met in 1988 when plaintiff was visiting a friend in Brazil. Thereafter, defendant decided to move to New York to be with plaintiff and the parties were married in a civil ceremony in the state of New York on February 27, 1989.
The parties lived in New York until 1999 when defendant accepted a job offer with Citibank conditioned upon his returning to Brazil within one year. They discussed the offer and were excited for the opportunity to live in Brazil and to raise their family there. When they moved to Brazil in 1999, the parties had two children and one on the way.

On November 18, 2002, defendant filed in Brazil what is known as the “Separation a Mensa et Thoro,” or “Separation from Bed and Board,” which is also known as the “Separation of Bodies.” 1 Plaintiff responded through her attorneys to the separation of bodies by filing a document that reflected she was not opposed to the separation from defendant, but she wanted to wait for the main process of legal separation, where they would discuss the custody of the three children, child support, maintenance and the division of marital property.2 Thereafter, on February 24, 2003, defendant filed the Brazilian action for a Judgment of Separation in the Family and Probate Court of S o Paulo.

On June 2, 2003, defendant filed an action offering alimony to his wife and children called “provisional alimony” (maintenance pending suit). His application for support offering was addressed on June 4, 2003 and since that time defendant has been paying alimony and child support on behalf of the plaintiff and the children. Plaintiff appealed the original decision. On July 1, 2003, the State Appeal Court of S o Paulo modified the lower court’s ruling and increased the obligated amount.

On 2004, plaintiff and the three children moved to the United States. Thereafter, she requested the 3rd Family and Probated Court of S o Paulo to modify the support order to require defendant to pay plaintiff in U.S. dollars, rather than Brazilian currency, as well as to increase the amount of support. The family court upwardly modified defendant’s support obligation but the plaintiff appealed. On October 11, 2005, the State Court granted plaintiff’s request and further modified the support order. Plaintiff was timely served with a copy of the court’s decision but did not take an appeal.

On April 7, 2008 a Brazilian Separation Judgment was granted in defendant’s favor. Thereafter, the parties engaged in continued litigation in Brazil with respect to the issue of support in which an appeal is currently pending. On April 7, 2009, defendant filed a “Conversion of Separation” in order to convert his final separation into a divorce judgment. In response, on December 7, 2009, plaintiff objected to the request and filed an “Exception of Incompetence,” contending that the proper venue is the plaintiff’s domicile, in the United States, where she has moved. On June 25, 2010, the Brazilian court dismissed plaintiff’s exception to its jurisdiction and found that it was competent to appraise the claim regarding the conversion of the Brazilian Separation Judgment to Divorce.

Although disputed by plaintiff, defendant asserts that a final judgment of divorce is expected to be granted within the next few months. Plaintiff filed two prior divorce actions in the Nassau County Supreme Court, one in 2003 and another in 2004. Both actions were voluntarily discontinued by plaintiff. In the instant action a Summons with Notice for absolute divorce was filed in the Nassau County Supreme Court on July 2, 2009 and allegedly served upon the defendant in Brazil on August 6, 2009.

Defendant seeks dismissal of the action on three grounds: 1) the failure to timely serve a complaint; 2) the lack of personal jurisdiction over the defendant; 3) the equitable doctrine of forum non conveniens. In the alternative, defendant requests that this action be stayed pending the resolution of the parties’ litigation in Brazil.

Defendant argues that despite commencing this action by Summons with Notice on July 9, 2009, plaintiff has yet to serve a Verified Complaint, notwithstanding the fact that defendant demanded one on September 2, 2009 and that the rules of New York require a Verified Complaint be served within 30 days of a demand. Defendant asserts that there is no excuse for plaintiff’s failure to prosecute her action in the New York courts pointing to the fact that this represents the third litigation initiated by plaintiff with respect to the same issues being litigated in the courts of Brazil. He insists that plaintiff’s pattern of initiating litigation in this state, only to fail to timely prosecute the action, should not be rewarded.

Lack of personal jurisdiction over the defendant is contended in support of his motion to dismiss. He states that the requirements under CPLR 302 have not been met, to wit: 1) Brazil, not New York, was the matrimonial domicile for the three years prior to the parties’ separation in 2002 and that the defendant last resided in New York in 1999, ten years prior to this action being commenced; 2) defendant did not abandon the plaintiff in New York, as she voluntarily moved to New York from Brazil in 2004, two years after the parties had been litigating in Brazil the legal end of their marriage; and 3) the defendant’s support obligations accrued and have been litigated by both parties pursuant to the laws of Brazil since 2002.

Finally, defendant argues that the action should be dismissed under the equitable doctrine of forum non conveniens. He asserts that plaintiff’s actions, as evidenced by her filing and abandoning of two prior actions in New York, coupled with her active participation in the courts of Brazil, constitutes blatant forum shopping. The doctrine of forum non conveniens permits the balancing of many factors that support dismissal in this case.

Plaintiff’s Summons with Notice in the instant action was filed in Nassau County Supreme Court on July 2, 2009 and allegedly served upon defendant on August 6, 2009.3 She argues that since service was effectuated upon defendant prior to defendant effectuating service upon her on the Brazilian conversion divorce action, this action takes precedence over the Brazilian action. In essence, plaintiff argues that jurisdiction in the instant action preceded Brazilian jurisdiction by almost two months, therefore, this action stands. She additionally argues that defendant has submitted to the jurisdiction of this court since defendant’s counsel’s Notice of Appearance is a general appearance without any limitation or restriction.

Plaintiff concedes that she instituted actions for divorce in this court in 2003 and 2004 and thereafter discontinued same. She also concedes that she submitted to the jurisdiction of the Brazilian court for a period of six years to litigate issues of custody, visitation and support. However, the thrust of plaintiff’s argument is that defendant’s Summons does not seek relief with respect to equitable distribution of assets. Therefore, the divorce action should be litigated in New York.

Plaintiff submits an affidavit from an attorney who has represented her over the past eight years in the Brazilian courts. The attorney opines as to Brazilian legal procedures, how lengthy the proceedings can be, and how unfavorable the system is with respect to the discovery of assets. Plaintiff, in turn, argues that our system is “far more protective” of her and that this court, in the interest of justice, should exercise jurisdiction over the matter.

In reply, defendant states that plaintiff does not dispute the fact that she has failed to timely serve a complaint in this action. Therefore, the motion should be granted on this ground alone. Additionally, defendant indicates that none of the papers submitted in opposition address the issue of this court’s lack of personal jurisdiction over defendant, save for a single statement, without citation, wherein he implies that defendant waived this defense because the Notice of Appearance filed by defendant’s counsel was not designated as “limited” or “special.”

Defendant cites CPLR § 3211 for the proposition that it is no longer required that a defendant make the personal jurisdiction objection by motion in a special appearance, as was required by § 237–a of the old Civil Practice Act (superseded by the CPLR in 1963). Special appearance has been abolished and it now suffices to object to personal or rem jurisdiction either by motion to dismiss under CPLR § 3211 or in the answer. Defendant indicates that he has timely objected to the lack of personal jurisdiction by virtue of the instant application.4

Defendant further argues that plaintiff’s papers are utterly devoid of reference to the cases cited in defendant’s opening memorandum; that she ignores entirely that she has been actively litigating the end of her marriage in Brazil since 2002; that she has engaged in blatant forum shopping; and that she, through her attorneys have disparaged the Brazilian court system by offering this court an erroneous presentation of the fairness of Brazilian procedures. Defendant asserts that plaintiff has failed to substantiate her claim that he has been hiding assets from her in the Brazilian litigation but, instead, seeks to litigate in New York in order to set a more favorable “cut off” date with respect to the accumulation of marital assets.

Defendant contests that there are no more potential obstacles to the issuance of a divorce judgment by the Brazilian courts. On October 27, 2010, plaintiff’s appeal from the Brazilian trial court’s decision regarding competency of the Brazilian courts was denied.

Defendant’s motion to dismiss the instant action is GRANTED.CPLR 302(b), provides in pertinent part: “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.”

Application of this provision, however, must comport with traditional notions of due process. Hence, “sufficient minimum contacts with this State must be found in order to exercise long-arm jurisdiction over defendant pursuant to CPLR 302(a) so that “traditional notions of fair play and substantial justice’ “ were not offended’ “.

Applying the above principles to the case at bar, the court finds that defendant did not have sufficient minimum contacts with the state of New York for the court to confer jurisdiction over him. The country of Brazil, not the state of New York was the matrimonial domicile of the parties before their separation. The defendant did not abandon the plaintiff in New York; plaintiff voluntarily moved from Brazil to New York in 2004, two years after the commencement of the Brazilian separation proceedings. Moreover, the claim for support, alimony, maintenance, distributive award, or special relief in the matrimonial action did not accrue under the laws of the state of New York or under a separation agreement executed in New York. As stated, the parties moved to Brazil in 1999 and have been litigating the end of their marriage in Brazil since 2002.

In view of this court’s determination to dismiss the instant action for lack of personal jurisdiction, we need not reach the issue of whether a complaint was timely served or whether New York is an inconvenient forum for this action, within the meaning of CPLR 327(a). Nevertheless, this case closely resembles actions which were dismissed on the grounds of forum non conveniens. The court does note, however, that plaintiff’s arguments that the New York courts are “far more protective” of her and that the discovery process in the Brazilian courts is inferior to the discovery process in this court are unsubstantiated and, thus, without merit.
This constitutes the decision and order of this court. Execution is hereby stayed for a period of seven (7) days from service of a copy of this order with notice of entry for the purpose of possible commencement of an action in the Nassau County Family Court under the Uniform Child custody Jurisdiction and Enforcement Act § 75–h(1).

If you want to gain the custody of your child and file for child support, you will need the help of an experienced lawyer from Stephen Bilkis and Associates.

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