Opinion
December 20, 1994
Appeal from the Supreme Court, New York County (David Saxe, J.).
Appeal from the Supreme Court, New York County (Joan Lobis, J.).
Residency is not "the 'sole barometer' or test for determining compliance with Domestic Relations Law § 230, but an alternative to domicile" (Capdevilla v Capdevilla, 149 A.D.2d 312, 312-313, citing with approval the Second Department in Unanue v Unanue, 141 A.D.2d 31). Therefore, while residency and domicile are not interchangeable, the determination of whether a party is a resident of New York State depends upon "whether he has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year" (Antone v General Motors Corp., 64 N.Y.2d 20, 30). Defendant has resided in New York with a substantial degree of continuity and permanence notwithstanding the existence of residences elsewhere (see, Davis v Davis, 144 A.D.2d 621), and the Supreme Court was correct in denying the motion to dismiss the matrimonial action.
As for defendant's application for dismissal of the personal injury action against him on the ground of forum non conveniens, it is settled that a defendant who alleges that New York is an inappropriate forum bears a heavy burden in demonstrating that another forum would be preferable (Islamic Republic v Pahlavi, 62 N.Y.2d 474, 479, cert denied 469 U.S. 1108). Significantly, defendant has not presented any facts showing inconvenience to a single party or other witness to this matter. Indeed, since he maintains his principal place of business in New York, he cannot reasonably argue that he is inconvenienced by having the case heard in New York rather than in California. While the alleged assault may have occurred in California, plaintiff received most of her medical treatment in New York, and California is no more convenient to the parties than is New York.
Finally, the Supreme Court properly rejected defendant's attempt to effectuate the transfer of the defamation, slander and libel suit against him to Suffolk County. Although CPLR 503 (a) requires that venue be "in the county in which one of the parties resided when [the action] was commenced", this Court has held that for venue purposes, "a residence is where a party stays for some time with '"the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency"'" (Sibrizzi v Mount Tom Day School, 155 A.D.2d 337, 338). Since defendant has owned and maintained a New York apartment for more than 10 years, he certainly has a real interest in retaining a residence in New York County for the requisite length of time and permanency to support venue.
The remainder of defendant's arguments on appeal relate primarily to the Supreme Court's disposition with respect to plaintiff's motion for interim relief. It is axiomatic that the proper remedy for a dispute regarding an award of temporary maintenance is a prompt trial (Eisenberg v Eisenberg, 169 A.D.2d 588), and modifications of pendente lite awards should rarely be made except under exigent circumstances (Suydam v Suydam, 167 A.D.2d 752, 753). Defendant has failed to demonstrate such exigent circumstances.
We have considered defendant's remaining arguments and deem them to be without merit.
Concur — Murphy, P.J., Sullivan, Nardelli and Tom, JJ.