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

IN RE: VERNA HH., Alleged to be an Incapacitated Person. Naomi II., Appellant; John HH., Respondent.

Decided: February 13, 2003

Before:  CREW III, J.P., SPAIN, CARPINELLO, LAHTINEN and KANE, JJ. Wapner, Koplovitz & Futerfas P.L.L.C., Kingston (Rachel L. Cavell of counsel), for appellant. Riseley & Ball, Kingston (Nancy T. Riseley of counsel), for respondent.

Appeal from an order of the Supreme Court (Bradley, J.), entered September 20, 2001 in Ulster County, which, in a proceeding pursuant to Mental Hygiene Law article 81, granted respondent's motion to dismiss the petition.

Petitioner and respondent are the children of Verna HH., who is alleged to be an incapacitated person.   Prior to the commencement of this proceeding, Verna resided in Kentucky with respondent for approximately 10 years.   In May 2001, petitioner traveled to Kentucky, brought Verna back to New York and thereafter commenced the instant proceeding seeking the appointment of a guardian over Verna's person and property.   Respondent moved to dismiss the petition contending that Supreme Court lacked jurisdiction or, in the alternative, that Supreme Court should decline jurisdiction on the basis of forum non conveniens.   Supreme Court granted respondent's motion, finding that Verna neither had property in, nor sufficient contacts with, New York to confer jurisdiction under Mental Hygiene Law § 81.04. This appeal by petitioner ensued.

 We reverse.  Mental Hygiene Law § 81.04(a)(2) empowers Supreme Court to provide the relief afforded by Mental Hygiene Law article 81 to “a nonresident of the state present in the state.”   The plain and unambiguous language of the statute makes clear that nothing beyond mere physical presence in the state is required in order to confer jurisdiction.   Thus, Supreme Court erred in dismissing the underlying petition based upon Verna's lack of property in, or sufficient contacts with, this state.

 With regard to whether the petition should be dismissed based upon forum non conveniens, although Supreme Court did not reach this issue, we will do so in the interest of judicial economy.  “[T]he doctrine of forum non conveniens ‘permits a court to dismiss an action when, although it may have jurisdiction over a claim, the court determines that “in the interest of substantial justice the action should be heard in another forum” ’ ” (3H Enters. v. Bennett, 276 A.D.2d 965, 966, 715 N.Y.S.2d 90, lv. denied 96 N.Y.2d 710, 726 N.Y.S.2d 373, 750 N.E.2d 75, quoting National Bank & Trust Co. of N. Am. v. Banco De Vizcaya, 72 N.Y.2d 1005, 1007, 534 N.Y.S.2d 913, 531 N.E.2d 634, cert. denied 489 U.S. 1067, 109 S.Ct. 1343, 103 L.Ed.2d 812, quoting CPLR 327).   Based upon consideration of various factors, including the availability of an alternative forum in Kentucky, the potential hardship to respondent of having to defend a proceeding in this state and Verna's presence in and contacts with this state, we cannot conclude that respondent has met his burden of demonstrating that New York is an inconvenient forum (see Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479, 478 N.Y.S.2d 597, 467 N.E.2d 245, cert. denied 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778).   Therefore, we decline to dismiss the petition upon that basis.

ORDERED that the order is reversed, on the law, without costs, and motion denied.



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