Patty P. v. Jason P.
| Decision Date | 16 July 2019 |
| Citation | 106 N.Y.S.3d 765,64 Misc.3d 1005 |
| Parties | PATTY P., Plaintiff, v. JASON P., Defendant. |
| Court | New York Supreme Court |
64 Misc.3d 1005
106 N.Y.S.3d 765
PATTY P., Plaintiff,
v.
JASON P., Defendant.
Supreme Court, Kings County, New York. Kings County.
Decided July 16, 2019
Abrams Fensterman, et al, By: Grace Borrino, Esq., One Metrotech Center, Suite 1701, Brooklyn, New York 11201, Attorney for Defendant.
Mary Grace Condello, Esq., 1716 86th Street, Brooklyn, New York 11214, Attorney for Plaintiff.
Jeffrey S. Sunshine, J.
Plaintiff filed an action for divorce by filing a summons and verified complaint dated February 6, 2019. In the verified complaint, plaintiff averred that jurisdiction pursuant to DRL § 230 was satisfied because she had been a resident of New York State for a continuous period of at least two (2) years immediately prior to commencement of the action. An affidavit of service of the summons and verified complaint dated February 12, 2019 was filed.
On March 5, 2019, defendant filed a request for judicial intervention and the instant application seeking an order dismissing the divorce action filed by the plaintiff on the grounds that this Court does not have jurisdiction over the proceeding pursuant to DRL § 230 and CPLR 302(b), alleging that plaintiff has not established that she is a resident of New York State. Plaintiff filed an Affidavit in Opposition dated April 9, 2019 and defendant filed an Affirmation in Reply dated May 15, 2019. Oral argument was held on the record on May 21, 2019. Plaintiff and plaintiff's attorney and defendant's attorney were present. The defendant's appearance, who currently resides in Oklahoma, was waived.
The Facts
Plaintiff-wife and defendant-husband were married on August 7, 1998, in Oklahoma City, Oklahoma. There are two (2) children of the marriage: one aged sixteen (16) years old and another age twenty (20) years old. During the majority of the parties' marriage, the defendant was a member of the military and it is undisputed that the parties had five (5) matrimonial domiciles during the marriage: none of which were New York State. The parties first resided in Oklahoma, from August 1998 to November 2004.
The U.S. military sent the defendant to Washington State, as a result, plaintiff followed and the parties remained in Washington State until August 2008. The parties then relocated to Maryland, where the parties remained until August of 2011. Thereafter, the military sent the defendant to Virginia, and the plaintiff again followed the defendant. The parties resided in Virginia from August 2011 until November 2012. Subsequently, the parties moved back to Oklahoma. The defendant is no longer in active military duty and is currently employment at a local Veteran's Affairs ("VA") Hospital. The parties spent the next six (6) years of their marriage in Oklahoma until July 2017. Defendant still resides in Oklahoma.
Defendant avers that the parties never traveled to or resided in New York State during the marriage and he avers that they never committed any marital act in the State of New York. Plaintiff did not affirmatively dispute that representation and did not provide any evidence to the contrary.
Plaintiff contends that she left the matrimonial domicile in Oklahoma in July 2017 and moved to New York State where, she
alleges, she has resided continuously ever since. Plaintiff alleges that she left the marital residence in Oklahoma due to domestic violence. In support of her allegation, she annexed to her application a July 31, 2017 application for an order of protection that she filed against the defendant in Cleveland County, Oklahoma.
In that sworn application seeking the order of protection, plaintiff averred that she was a resident of Cleveland County as of July 31, 2017. The order of protection was subsequently dismissed.
Defendant does not dispute that plaintiff left Oklahoma in or about July 2017. He avers that after she left Oklahoma, the plaintiff briefly resided in Texas where he contends she remained for the duration of Hurricane Harvey, which touched down on August 25, 2017, and lasted until August 30, 2017. Defendant offered no basis for his belief that plaintiff was in Texas during that time; however, plaintiff did not dispute defendant's allegation that she was in Texas during August 2017 in her opposition papers or when that allegation was raised on the record during oral argument. Plaintiff alleged that after she left Oklahoma she spent time in a "safe house" then moved to Brooklyn, New York.
Defendant avers that he was not privy to plaintiff's whereabouts after she left Texas sometime after August 2017 and
that he had no knowledge that plaintiff allegedly moved to New York State. He contends that, at most, plaintiff could only have become a resident of New York State sometime after August 2017 which would make it impossible for her to satisfy the two (2) years of continuous residency immediately prior to the commencement of the divorce action required by DRL § 230(5) when she filed the action in February 2019.
Plaintiff has filed two sworn affidavits in this action in which she avers to her residency in New York State: those sworn affidavits are inconsistent. In the Verified Complaint, dated February 6, 2019, plaintiff alleges that she has been a resident of New York for at least two (2) years continuously immediately before the commencement of the action. Based upon plaintiff's filing, she would have had to have been a resident of New York State by February 6, 2017 in order to satisfy the two (2) years of continuous residence immediately before the commencement of the action. Subsequently, in her Affidavit of Opposition to defendant's motion to dismiss, plaintiff alleges that she has been a resident of New York State for one (1) year and that DRL 170(7) is a "cause of action" sufficient to trigger DRL 230(3).
Plaintiff also offered conflicting allegations regarding whether the defendant knew she was in New York. She alleges that defendant was covertly tracking her whereabouts and that he knew she was in New York State; however, during the May 21, 2019 oral argument, plaintiff's counsel represented that the defendant could not know where the plaintiff was residing, stating that:
"He (the defendant) would not know where she (plaintiff) was, your Honor, because it was a complete stay away, and there was a radius restriction as to where he could be near her. So of course he (defendant) would not have an address, because of the outstanding orders from Oklahoma. My client never proceeded with the Oklahoma order of protection because she (plaintiff) left Oklahoma and came to New York." (May 21, 2019 p. 8, ll 4-10).
On September 29, 2017, defendant commenced an action for divorce in Oklahoma; however, he avers that service could not be effectuated to satisfy Oklahoma's statutory time period because he did not know where plaintiff was residing. In
plaintiff's Affidavit of Opposition, she avers that the
defendant did not file an action for divorce in Oklahoma, rather, she filed for divorce in New York and the defendant contested the action; however, annexed to plaintiff's own affidavit as Exhibit A, is a copy of the first page of a summons and complaint dated September 29, 2017, filed in the District Court of Cleveland County, Oklahoma with the defendant as the petitioner and the plaintiff as the respondent. This appears to contradict plaintiff's own...
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