Opinion
96031.
Decided September 12, 2005.
The plaintiff to the above referenced matrimonial action commenced this action on April 1, 2005, by the filing of a Summons with Notice in the Ontario County Clerk's Office. Both parties were born in Bulgaria and each maintain dual citizenship with the United States and Bulgaria. The plaintiff designated Ontario County as the place of trial, citing the defendant's residence as the basis of venue.
The plaintiff herein moves for an order directing that the issue of the parties' ownership and all associated rights and interests concerning the various properties located in Bulgaria be reserved for determination by the appropriate courts of judicial bodies of Bulgaria, by virtue of New York being an inconvenient forum pursuant to CPLR § 327. The plaintiff submits that it has become apparent that one of the main points of contention in this case involves various properties located in Bulgaria. The plaintiff argues that by attempting to have this Court make a determination as to the ownership and ultimate distribution of the Bulgarian properties, it would change the dynamics of this case from a relatively typical divorce action, into one which would impose an undue burden on the Court's time and resources as well as impose time and economic burdens on the plaintiff that she simply cannot satisfy.
In opposition to this motion, the defendant asserts that this action for divorce was commenced by the plaintiff in the State of New York, where both parties reside. The defendant argues that, although they visit Bulgaria, their only ties to that country are the properties that are located there. The defendant objects to leaving matters of New York matrimonial equitable distribution to the courts of Bulgaria, who have no familiarity with New York laws pertaining to equitable distribution.
The applicable provisions of inconvenient forum, codified in CPLR § 327(a), provides as follows:
"When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just."
Although no list of factors can be considered exclusive when determining whether jurisdiction of a case should be retained, the Court of Appeals in Islamic Republic of Iran v. Pahlavi, ( 62 NY2d 474), identified some of the most important ones to be considered: burden on the New York courts; hardship to the moving party; availability of an alternative forum; locus of the cause of action; and residence of the parties.
The burden lies with the moving party on a forum non conveniens motion to demonstrate why New York is inconvenient and some other forum is more appropriate (see, Islamic Republic of Iran v. Pahlavi, 62 NY2d 474).
The plaintiff herein has failed to meet that burden. It was the plaintiff herein who chose New York State as the forum for this action. The parties are residents of New York and a decision on this matter must be based on the principles laid out in § 236-B of the Domestic Relations Law. To separate the issue of the Bulgarian property from the remainder of the issues involved in the instant matter would not be in the interest of substantial justice.
Accordingly, this Court hereby denies plaintiff's motion.
This shall constitute the Decision of the Court. Submit Order accordingly.