JINDAL v. JINDAL

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Supreme Court, Appellate Division, First Department, New York.

Maneesha JINDAL, Plaintiff-Respondent, v. Sanjay JINDAL, Defendant-Appellant.

Decided: September 18, 2008

MAZZARELLI, J.P., ANDRIAS, SAXE, FRIEDMAN, ACOSTA, JJ. Ira E. Garr, New York, for appellant. Cohen & Prizer, Carle Place (Linda A. Prizer of counsel), for respondent.

Order, Supreme Court, New York County (Rosalyn Richter, J.), entered December 28, 2007, which, to the extent appealed from, denied defendant's cross motion for summary judgment dismissing the complaint on the ground that the durational residency requirement of Domestic Relations Law § 230 has not been satisfied and on the ground of forum non conveniens, unanimously affirmed, without costs.

 The durational residency requirement set forth in Domestic Relations Law § 230(5) is satisfied by evidence that for two years prior to commencement of the action, plaintiff, although spending a portion of the statutorily relevant period in India, maintained a permanent residence in New York and returned there with regularity (see Weslock v. Weslock, 280 A.D.2d 278, 719 N.Y.S.2d 653 [2001], lv. dismissed 96 N.Y.2d 824, 729 N.Y.S.2d 443, 754 N.E.2d 203 [2001];  Wildenstein v. Wildenstein, 249 A.D.2d 12, 671 N.Y.S.2d 227 [1998];  Davis v. Davis, 144 A.D.2d 621, 535 N.Y.S.2d 23 [1988] ).   We also note that there is support in the record for the conclusion that plaintiff returned to India in order to accompany defendant in dealing with matters involving his family.

 Defendant's request to dismiss the action on the basis of forum non conveniens was also properly denied since the matter has a substantial nexus with New York and defendant failed to demonstrate that India would be the preferable forum (see Wittich v. Wittich, 210 A.D.2d 138, 139, 620 N.Y.S.2d 351 [1994] ).