ESSER v. ESSER (2000)

 Supreme Court erred in denying defendant's motion to dismiss the complaint in this action for divorce.   Contrary to Supreme Court's conclusion, plaintiff failed to sustain her burden of establishing that she “has been a resident [of New York] for a continuous period of one year immediately preceding” commencement of this action (Domestic Relations Law § 230[1] ).   Residency may be established either by proof that a person dwelled in New York for a continuous period of one year immediately preceding commencement of an action for divorce or by proof that a person was continuously domiciled in New York for that period (see, Bourbon v. Bourbon, 259 A.D.2d 720, 687 N.Y.S.2d 426;  Unanue v. Unanue, 141 A.D.2d 31, 38-40, 532 N.Y.S.2d 769).   Because she relocated to New York less than one year prior to the commencement of this action, plaintiff was required to establish that she was continuously domiciled in New York for the requisite period of time.   “Domicile is the place where the parties lived together as husband and wife with the intention of making it their fixed and permanent home” (Scheinkman, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law, C230:3, at 29).

In determining that plaintiff met the residency requirement, the court found that plaintiff “never changed her residence” and that she has “always voted officially in the State of New York”.   The record does not support those findings.   There is no evidence that plaintiff has ever voted in New York.   Plaintiff testified that she currently is registered to vote in New York and that she currently has a New York driver's license, but there is no evidence that she either registered to vote in New York or obtained a driver's license in New York prior to relocating to New York less than a year before commencement of the action.   Her conclusory testimony that she always intended to reside in New York is insufficient to establish that she is a domiciliary of New York.   Thus, the court should have dismissed the complaint.

In view of our determination, we do not reach defendant's remaining contentions.

Judgment unanimously reversed on the law without costs, motion granted and complaint dismissed.

MEMORANDUM: