E.L., Plaintiff, v. M.S., Defendant. (2023)

On July 6, 2022, Plaintiff filed motion sequence 001 seeking various pendente lite relief including (a) temporary maintenance in the amount of $1,200 per week as and for the support of the Plaintiff; (b) return of plaintiff's personal property from the parties’ marital residence and/or Defendant's person, residence or his agent, girlfriend, roommate; (c) access to parties’ tangible marital property for inspection from said locations/persons; (d) payment by the Defendant to the Plaintiff the sum of $5,000 for moving expenses and for lack of support and since September, 2021; (e) payment by the Defendant, for Plaintiff's the medical and dental expenses of the Plaintiff during the pendency of the action; (f) interim counsel fees to the attorney for the Plaintiff in the sum of $5,000; (g) a Restraining Order, pursuant to CPLR Section 5222; and (h) a Preliminary Injunction, pursuant to CPLR Section 6311.

In this Emergency Order to Show Cause, motion sequence 002, filed on August 19, 2022, Defendant seeks to dismiss the action pursuant to CPLR § 327; or in the alternative stay the within proceedings pursuant to CPLR § 2201. Plaintiff cross moved to deny the motion and for an extension of time to serve the summons in this action on Defendant.

Statement of Facts

The Plaintiff and Defendant were married in Paris, France, in 2009. They do not have any children together. They resided together in New York from 2014 until August 2020 when they went to live in South Korea. Defendant left South Korea on April 1, 2021 and returned to New York because he was required to work in person in New York. Plaintiff refused to join him.

Defendant commenced an action for Divorce in South Korea on or around September 13, 2021. On October 18, 2021, the South Korean Court personally served the Plaintiff with a Petition for Divorce and Plaintiff responded to the petition. On March 29, 2022, and May 3, 2022, the parties both appeared before the South Korean Court. On April 8, 2022, the Plaintiff commenced the action for a divorce in New York and on July 6, 2022, Plaintiff filed motion sequence 001. The action filed in the South Korean Court predates the action filed here. The action that is pending in the South Korean Court addresses the same issues that are presented in this New York Court action.

According to Plaintiff, Defendant engaged in wrongdoing, including removing marital property, prevented her from returning to New York by cancelling her airline tickets and cutting off her access to funds, and controlled her during the marriage. She claims she desires to return to New York and wants to litigate the divorce here. Regarding service of Defendant in this action, Plaintiff states that he provided a “fake” address in Flushing, New York and she does not know where he lives now.

Defendant's Argument

The Defendant argues that this Court has the authority to dismiss an action when there is already an action pending in a “more appropriate court” and where that Court has already entered orders and is proceeding on that case. They continue to argue that the “more appropriate court” is the South Korean Court because the action was already pending there when this action was filed. Defendant further argues that “if this Court does not find the Korean Court to be a more convenient forum it is respectfully submitted that the New York action should be stayed until disposition of the action in the Korean Court, so that this Court is not entering duplicative Orders with the South Korean Court, as this action will likely resolve all of the same issues that the Plaintiff seeks to have resolved in this Court.”

Dismissal and Stay

Under CPLR § 327, “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 part, may stay or dismiss the action in whole or in part on any conditions that may be just.” NY C.P.L.R. 327 (McKinney). “Among the factors the court must weigh in deciding whether to apply the doctrine of forum non conveniens to dismiss an action are the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts. Jackam v. Nature's Bounty, Inc., 70 AD3d 1000, 895 N.Y.S.2d 508 (2010). Further, “application of doctrine of forum non conveniens is a matter of discretion to be exercised by the trial court and the Appellate Division.” Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 467 N.E.2d 245 (1984).

Under CPLR § 2201, “except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” NY C.P.L.R. 2201 (McKinney). “It is only where decision in one action will determine all the questions in the other action and the judgment on one trial will dispose of the controversy in both actions that a case for a stay is presented. 660 Riverside Drive Aldo Assocs. L.L.C. v. Marte, 178 Misc 2d 784, 681 N.Y.S.2d 436 (Civ. Ct. 1998). Moreover, “trial court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof, and potential waste of judicial resources. In re Eshagian, 48 Misc 3d 920, 15 N.Y.S.3d 560 (NY Sur. 2015).

Analysis

Here, Defendant lives in New York while the Plaintiff lives in South Korea. There is an available alternative forum, as there is an ongoing proceeding in South Korea on the same issues. The parties appeared in South Korean court in this ongoing proceeding on March 29, 2022, and May 3, 2022. The majority of the marital assets are in South Korea. Retention of this case will burden the New York courts as determination of the South Korean action will answer the same issues in this New York proceeding. Continuing this action in a New York Court risks inconsistent adjudications with the South Korean Court and can be a potential waste of judicial resources since the South Korean Court is already adjudicating on the same issues. Furthermore, discretion is given to the Court when deciding on forum non conveniens and a motion to stay an action. Here, granting a dismissal may be too strong a remedy at this time; but it can still be considered upon determination of the action by the South Korean Court. Therefore, Defendant's Emergency Order to Show Cause in motion sequence 002 is granted and motion sequence 001 is stayed until the determination of the action by the South Korean Court.

As for the cross motion, given the circumstances, and in the Court's discretion, Plaintiff is granted an extension of time to serve Plaintiff and may serve Defendant at his attorney's office within 20 days of this order (see CPLR 306-b).

Accordingly, it is

ORDERED that motion sequence 002 is granted to the extent indicated above; and it is further

ORDERED that motion sequence 001 and these proceedings are stayed until the determination of the action by the South Korean Court; and it is further

ORDERED that the March 30, 2023, date for this action is vacated; and it is further

ORDERED that the matter is scheduled for control on September 28, 2023, at 9:30am as a virtual conference.

This constitutes the Decision and Order of the Court.

Ariel Chesler, J.