R.M. v. Dr. R., 2008 NY Slip Op 50364(U) (N.Y. Sup. Ct. 2/26/2008)
| Decision Date | 26 February 2008 |
| Docket Number | 06-203062. |
| Citation | 2008 NY Slip Op 50364 |
| Parties | R.M., Plaintiff v. Dr. R., Defendant and C.R., Intervenor. |
| Court | New York Supreme Court |
This motion by the defendant for an order permitting him to present testimony from three witnesses by means of video conferencing their testimony in live time from India to the courtroom of the undersigned justice in Mineola, New York presents an issue of first impression.
The plaintiff commenced a prior action against the defendant seeking a judgment of divorce and granting ancillary financial relief on or about March 16, 2006.. Her verified complaint alleged that the parties were married by arrangement in a Hindu ceremony in Kothareddy Palem India "in or about 1955." The parties have three emancipated children. A fourth child is deceased. On March 18, 2006, a process server, retained by plaintiff's counsel, served a summons and verified complaint in said prior action, and an order to show cause, dated March 17, 2006, seeking a order enjoining the defendant from making any disposition of assets, on a male of Indian descent. Thereafter, the defendant moved for an order dismissing the complaint on the ground of lack of personal jurisdiction, stating that the plaintiff's process server mistakenly served the summons and complaint on his brother-in-law instead of on the defendant.
The order to show cause dated March 17, 2006, contained an ex parte order prohibiting the defendant from making any disposition of assets except in the ordinary course of business or living. Nevertheless, in March 2006, the defendant transferred over $2,250,000.00 in liquid assets to C R the woman he contends is his wife. He also transferred his interest in the marital residence to her in March 2006, but his interest was conveyed back to him upon his counsel's advice. In April 2006, he contracted to sell real property in Long Beach and actually sold other real property he owned in Long Beach.
The prior action was dismissed on the record in open court, after a traverse hearing, on October 24, 2006. The plaintiff commenced the above captioned action on or about October 25, 2006, and an order to show cause, granting an interim restraint on the defendant's assets, was signed on October 26, 2006, in the instant action, after notice was afforded to the defendant of the application for an ex parte restraint and a conference was conducted with counsel for both parties. Pursuant to said order to show cause, the defendant was further directed to produce a net worth affidavit, for an in camera inspection, on November 3, 2006.
The plaintiff was unable to effectuate service of the summons and verified complaint in the instant action, and order to show cause dated October 26, 2006 until October 28, 2006. The plaintiff has submitted an affidavit from a process server in support of her contention that the defendant evaded service of process on October 26, 2006 and October 27, 2006. On October 26, 2006, the defendant transferred his interest in the marital residence, his interest in S Realty, and his interest in T Properties to C R and he liquidated or transferred over $500,000.00 in investment accounts.
Pursuant to an order dated November 8, 2006, the Court held that the October 26, 2006 transfers appeared to have rendered the defendant insolvent as his affidavit of net worth stated that he owned assets worth approximately $3,700,000.00 ($3,400,000.00 in retirement assets) and owed liabilities of over eleven million dollars. The order dated November 8, 2006, further directed as follows, denoted in bold print:
ORDERED, that the temporary restraining order set forth in the order to show cause dated October 26, 2006 is superceded by the following temporary order: it is hereby
ORDERED, that pending the determination of the order to show cause dated October 26, 2006, the defendant is enjoined and restrained from selling, transferring, encumbering, hypothecating, dissipating, secreting or otherwise disposing of any assets held in his name or his name and the name of a non-party, except that he may take the required minimum distributions from his retirement accounts as may be mandated by applicable law.
Pursuant to a motion submitted on January 23, 2007, the plaintiff sought an order restraining the defendant from making any disposition of assets during the pendency of this action except in the ordinary course of business. The defendant moved for an order 1) pursuant to CPLR 327(a) dismissing the action on the ground of that New York State is an inconvenient forum; 2) dismissing the action on the ground that at the time the action was commenced there was another action pending; and 3) in the alternative, granting him a lengthy continuance after the completion of the plaintiff's case to enable him to produce witnesses who reside in India.
The defendant vigorously opposed the plaintiff's application for an order restraining his further disposition of assets. He denied he was ever married to the plaintiff. Further, he advised the Court that in January 2005, long before the commencement of the prior action herein, he made transfers to C R of his 50% interest in five limited liabilities corporations that apparently own various real properties. He stated that the transfers of January 2005, as well as those made in 2006, were all part of an estate plan, and were additionally intended to insulate his assets from any possible malpractice judgment.
The plaintiff contended that the transfers made in 2006 were intended solely to defeat her claim to an equitable share of the defendant's assets.
Said motions were decided by a decision and order dated January 29, 2007, as follows, denoted in bold print:
According to a passport issued by the Republic of Indian on April 2, 1998, the plaintiff was born on September 9, 1942, and she is 64 years old. The defendant states that he is 72 years old. The plaintiff is residing in Michigan with the parties' daughter. The defendant is a urological surgeon residing in New York. The defendant has resided in the United States since 1966. The plaintiff came to the United States in 1994 with the help of the parties' daughter, after the daughter established permanent resident status in this country. The plaintiff states that the defendant stopped supporting her and the children approximately 30 years ago. She lives on social security benefits of $360.00 a month. Her only asset is $1000.00 on deposit in a credit union account.
In an affidavit submitted by the defendant in the prior action, sworn to on April 12, 2006, he stated that he never participated in a civil or religious ceremony with the plaintiff at any time. He noted that the plaintiff's complaint in said prior action did not even set forth the date of the parties' purported marriage except to state it occurred in or about 1955. The defendant stated that he and the plaintiff were born and raised in Kottareddy, India; that they became romantically involved in or about 1953; that the relationship produced four children; that on May 23, 1966, he married C R in a Hindu ceremony in his home town in India; and that there is one emancipated child of this marriage. He provided a copy of a document, sworn to on May 23, 1966, that he states is his marriage certificate. He noted that he could not have married in his home town in 1966 if he had previously married in his home town in 1955. He stated that he has supported the children he had with the plaintiff, even through medical school attended by two of the children, by channeling funds through his uncle. He further stated that he allowed "people" to believe the parties were married to protect the plaintiff from dishonor. He stated without contradiction by plaintiff that the parties have had no correspondence, communication or interaction in more than 40 years.
In response to defendant's affidavit, the plaintiff stated that the parties were married in a traditional Hindu ceremony attended by 250 guests; that the ceremony took place not in 1955, but in the early 1950s before the defendant attended medical school.
In addition, in support of her claim that the parties were married, the plaintiff presented the following documents: 26 affidavits, including some from the defendant's relatives and village elders, who attended the wedding; the affidavit of the assistant priest who presided at the wedding; letters authored by the defendant to the parties' children addressing his need for divorce papers from the plaintiff; copies of expired passports that name the defendant as her spouse; a bank passbook, for an account she claims was opened by the defendant in India, naming her as his wife; property documents she contends identify the parties as a married couple; and a document entitled "Marriage Certificate" sworn to by a priest on May 16, 2006. In said certificate, the priest states that he is 71 years old; that he recalls marrying the parties herein and also recalls marrying their daughter 30 years later.
Further, the plaintiff submitted an affidavit, by an attorney and former judge, she contends is an expert in Indian matrimonial law. The affidavit states unequivocally that the parties entered into a marriage that would be recognized under Indian law.
The defendant replied that the priest who signed the "Marriage Certificate," presented by the plaintiff, perpetrated a fraud, as he was not a priest, and did not reside in the parties' village until 1961; that many of the affidavits produced by the plaintiff were signed by illiterate villagers who did not understand the contents of the affidavits; and that the parties' son lied in his translation of a letter written by the defendant. The defendant points out that the plaintiff was only 10 years old in 1952 and she did not reach the age of permissible marriage in India until 1957. ...
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