SHENWICK v. PAULK (1999)

Order and judgment (one paper), Supreme Court, New York County (Joan Lobis, J.), entered July 31, 1998, which denied defendant's motion to dismiss this action for divorce on the ground of prior action pending and granted plaintiff's cross motion to enjoin defendant from prosecuting the matrimonial action he commenced in California, unanimously affirmed, without costs.

The injunction is warranted by a strong showing that defendant did not have a bona fide residence in California at the time he commenced his action there (see, Vanneck v. Vanneck, 49 N.Y.2d 602, 608, 427 N.Y.S.2d 735, 404 N.E.2d 1278).   The parties resided in New York for the entire duration of their 17–year marriage, where plaintiff continues to reside in the marital apartment under a lease that still had two years to run when defendant moved out;  defendant started the California action two months after going there for what was to have been a one-month consulting employment, and where his only residences have been a hotel and his parents' house;  defendant's parents live in California but his visits there over the years were neither regular nor frequent;  and while the parties own an apartment in California, they have never lived in it (compare, Lafferty v. Lafferty, 243 A.D.2d 541, 663 N.Y.S.2d 108, with Boynton v. Boynton, 228 A.D.2d 172, 644 N.Y.S.2d 173).   It should be noted that defendant commenced a separation action, rather than a dissolution action, in California because, as stated by his California attorney, he did not meet California residency requirements.

MEMORANDUM DECISION.