There are two motions before the Court. The plaintiff seeks an order restraining the defendant from making any disposition of assets during the pendency of this action except in the ordinary course of business. The defendant moves for an order 1) pursuant to CPLR 327(a) dismissing the action on the ground of that New York State is an inconvenient forum; 2) dismissing the action on the ground that at the time the action was commenced there was another action pending; and 3) in the alternative, granting him a lengthy continuance after the completion of the plaintiff's case to enable him to produce witnesses who reside in India.

The plaintiff commenced a prior action seeking a judgment of divorce and granting ancillary financial relief on or about March 16, 2006. Her verified complaint alleged that the parties were married by arrangement in a Hindu ceremony in Kothareddy Palem India " in or about 1955." The parties have three emancipated children. A fourth child is deceased. On March 18, 2006, a process server, retained by plaintiff's counsel, served a summons and verified complaint in said prior action, and an order to show cause, dated March 17, 2006, seeking a order enjoining the defendant from making any disposition of assets, on a male of Indian descent. Thereafter, the defendant moved for an order dismissing the complaint on the ground of lack of personal jurisdiction, stating that the plaintiff's process server mistakenly served the summons and complaint on his brother-in-law instead of on the defendant.

The order to show cause dated March 17, 2006, contained an ex parte order prohibiting the defendant from making any disposition of assets except in the ordinary course of business or living. Nevertheless, in March 2006, the defendant transferred over $2,250,000.00 in liquid assets to C R, the woman he contends is his wife. He also transferred his interest in the marital residence to her in March 2006, but his interest was conveyed back to him upon his counsel's advice. In April 2006, he sold real property he owned in Long Beach, and a second property in Long Beach is under contract. [*2]

The prior action was dismissed on the record in open court, after a traverse hearing, on October 24, 2006. The plaintiff commenced the instant action on or about October 25, 2006, and an order to show cause, granting an interim restraint on the defendant's assets, was signed on October 26, 2006, in the instant action, after notice was afforded to the defendant of the application for an ex parte restraint and a conference was conducted with counsel for both parties. Pursuant to said order to show cause, the defendant was further directed to produce a net worth affidavit, for an in camera inspection, on November 3, 2006.

The plaintiff was unable to effectuate service of the summons and verified complaint in the instant action, and order to show cause dated October 26, 2006 until October 28, 2006. The plaintiff has submitted an affidavit from a process server in support of her contention that the defendant evaded service of process on October 26, 2006 and October 27, 2006. On October 26, 2006, the defendant transferred his interest in the marital residence, his interest in XYZ Realty, and his interest in T Properties to C R and he liquidated or transferred over $500,000.00 in investment accounts.

Pursuant to an order dated November 8, 2006, the Court held that the October 26, 2006 transfers appeared to have rendered the defendant insolvent as his affidavit of net worth stated that he owned assets worth approximately $3,700,000.00 ($3,400,000.00 in retirement assets) and owed liabilities of over eleven million dollars. The order dated November 8, 2006, further directed as follows, denoted in bold print:

ORDERED, that the temporary restraining order set forth in the order to show cause dated October 26, 2006 is superceded by the following temporary order: it is hereby

ORDERED, that pending the determination of the order to show cause dated October 26, 2006, the defendant is enjoined and restrained from selling, transferring, encumbering, hypothecating, dissipating, secreting or otherwise disposing of any assets held in his name or his name and the name of a non-party, except that he may take the required minimum distributions from his retirement accounts as may be mandated by applicable law.

The defendant vigorously opposes the plaintiff's application for an order restraining his further disposition of assets. He denies he was ever married to the plaintiff. Further, he advises the Court that in January 2005, long before the commencement of the prior action herein, he made transfers to C R of his 50% interest in five limited liabilities corporations that apparently own various real properties. He states that the transfers of January 2005, as well as those made in 2006, were all part of an estate plan, and were additionally intended to insulate his assets from any possible malpractice judgment.

The plaintiff contends that the transfers made in 2006 were intended solely to defeat her claim to an equitable share of the defendant's assets.

According to a passport issued by the Republic of Indian on April 2, 1998, the plaintiff [*3]was born on September 9, 1942, and she is 64 years old. The defendant states that he is 72 years old. The plaintiff is residing in Michigan with the parties' daughter. The defendant is a urological surgeon residing in Nassau County New York. The defendant has resided in the United States since 1966. The plaintiff came to the United States in 1994 with the help of the parties' daughter, after the daughter established permanent resident status in this country. The plaintiff states that the defendant stopped supporting her and the children approximately 30 years ago. She lives on social security benefits of $360.00 a month. Her only asset is $1000.00 on deposit in a credit union account.

In an affidavit submitted by the defendant in the prior action, sworn to on April 12, 2006, he stated that he never participated in a civil or religious ceremony with the plaintiff at any time. He noted that the plaintiff's complaint in said prior action did not even set forth the date of the parties' purported marriage except to state it occurred in or about 1955. The defendant stated that he and the plaintiff were born and raised in Kottareddy, India; that they became romantically involved in or about 1953; that the relationship produced four children; that on May 23, 1966, he married C R in a Hindu ceremony in his home town in India; and that there is one emancipated child of this marriage. He provided a copy of a document, sworn to on May 23, 1966, that he states is his marriage certificate. He noted that he could not have married in his home town in 1966 if he had previously married in his home town in 1955. He stated that he has supported the children he had with the plaintiff, even through medical school attended by two of the children, by channeling funds through his uncle. He further stated that he allowed "people" to believe the parties were married to protect the plaintiff from dishonor. He stated without contradiction by plaintiff that the parties have had no correspondence, communication or interaction in more than 40 years.

In response to defendant's affidavit, the plaintiff stated that the parties were married in a traditional Hindu ceremony attended by 250 guests; that the ceremony took place not in 1955, but in the early 1950s before the defendant attended medical school.

In addition, in support of her claim that the parties were married, the plaintiff presented the following documents: 26 affidavits, including some from the defendant's relatives and village elders, who attended the wedding; the affidavit of the assistant priest who presided at the wedding; letters authored by the defendant to the parties' children addressing his need for divorce papers from the plaintiff; copies of expired passports that name the defendant as her spouse; a bank passbook, for an account she claims was opened by the defendant in India, naming her as his wife; property documents she contends identify the parties as a married couple; and a document entitled "Marriage Certificate" sworn to by a priest on May 16, 2006. In said certificate, the priest states that he is 71 years old; that he recalls marrying the parties herein and also recalls marrying their daughter 30 years later.

Further, the plaintiff submitted an affidavit, by an attorney and former judge, she contends is an expert in Indian matrimonial law. The affidavit states unequivocally that the parties entered into a marriage that would be recognized under Indian law. [*4]

The defendant replied that the priest who signed the "Marriage Certificate," presented by the plaintiff, perpetrated a fraud, as he was not a priest, and did not reside in the parties' village until 1961; that many of the affidavits produced by the plaintiff were signed by illiterate villagers who did not understand the contents of the affidavits; and that the parties' son lied in his translation of a letter written by the defendant. The defendant points out that the plaintiff was only 10 years old in 1952 and she did not reach the age of permissible marriage in India until 1957. (The court notes that the defendant's affidavit in support of his cross motion states that he became romantically involved with the plaintiff in 1953. She would have been 11 years old at that time). The defendant produced an affidavit by the "assistant priest" recanting his prior affidavit, together with affidavits of 32 villagers and 15 other residents of India. The plaintiff thereafter countered with further affidavits, plaintiff contends demonstrate that the defendant obtained the affidavits he submitted through intimidation, fraud, and bribery.

A bifurcated trial on the issue as to whether or not the parties were married in India was calendared by this Court to commence on February 27, 2007, and thereafter adjourned at the defendant's request to April 17, 2007.

The defendant now moves for the dismissal of the instant action on the ground that the potential witnesses with knowledge relevant to the parties' marital status reside in India and do not speak English. The defendant points out that any relevant documents will not be in English. He notes the advanced age of the witnesses, the cost of transporting them to the United States for trial, and the inability of this Court to subpoena witnesses or the production of documents from India. The defendant agrees to submit himself to the jurisdiction of an Indian Court and his counsel suggests that this Court could "refer" the issue of the validity of plaintiff's claimed marriage to the Indian courts while retaining jurisdiction over the pending divorce action.

The plaintiff points out the nexus between the State of New York and the instant litigation. She further points out that neither party has resided in India for the past 12 years; that the defendant is a resident of New York State; and that he owns substantial assets located in this State to which she claims entitlement to an equitable share. In addition, plaintiff states that the parties' children will be witnesses on her behalf.

The relevant law is well settled. "The 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' (CPLR 327)' " (Markov v Markov, 274 AD2d 870, quoting National Bank & Trust Co. v Banco De Vizcaya, 72 NY2d 1005, 1007). In exercising its discretion in determining a motion to dismiss pursuant to CPLR 327, a court should consider various factors including the potential hardship to the defendant, the availability or unavailability of an alternative forum, the residency of the parties, the potential hardship to witnesses, the situs of the underlying action, and the burden imposed on the New York State court (see, Islamic Republic v Pahlavi, 62 NY2d 474, 479, cert denied 469 US 1108; Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 73; Stamm v Deloitte v Touche, 202 AD2d 413). The Court is required to balance these factors in light of the [*5]facts and circumstances of the case ( see, National Bank & Trust Co. v Banco De Vizcaya, supra). The burden rests on a defendant seeking dismissal of an action pursuant to CPLR 327 to demonstrate that private or public interests militate against litigation in the forum selected by the plaintiff (see, Stamm v Deloitte v Touche, supra). Unless the aforesaid factors weigh heavily in the defendant's favor, the plaintiff's choice of forum should not be rejected (see, Waterways, Ltd. v Barclays Bank, 174 AD2d 324; Markov v Markov, supra).

In the case at bar, the defendant does not suggest that the State of New York lacks sufficient nexus to adjudicate all financial issues that may arise ancillary to the instant action for divorce (see, Bourbon v Bourbon, 259 AD2d 720; Markov v Markov, supra;), as the defendant resides in this State and his extensive assets are located here. Rather, defendant's counsel proposes only that this Court "transfer" the issue of the validity of the parties' purported marriage to India. As courts of this State lack authority to transfer actions pursuant to CPLR 327, the defendant's application is deemed a motion to stay the instant action pending the commencement and determination of an action in India to declare the validity or invalidity of the plaintiff's claim that she and the defendant are husband and wife.

This Court has found ample precedent wherein courts in the United States have determined the validity or invalidity of foreign marriage ceremonies (see, e.g. Amsellem v Amsellem, 189 Misc 2d 27 [upholding religious ceremony conducted in France]; Matter of Estate of Huyot, 169 Misc 2d 805 [holding claimant was a concubine and not a wife according to French law]; Singh v Singh, 67 Misc 2d 878 [ invalidating an arranged marriage in India]; In re White, 129 Misc 835 [upholding ceremonial Canadian marriage]; Xiong ex rel Edmondson v Xiong, 255 Wisc2d 693, 648 NW2d 900 [ upholding marriage in Laos]; Farah v Farah, 16 Va App 329, 429 SE2d 626 [invalidating Muslim marriage ceremony conducted in England]). In fact, the undersigned Justice has heretofore rendered an unpublished decision dismissing a claim that the parties had been married by virtue of a tribal ceremony in Nigeria.

Based upon all of the foregoing, the motions are decided as follows:

Upon consideration of the relevant factors, the Court declines, in its discretion, to dismiss or stay the instant action on the ground of forum non conveniens. In making this determination, the Court has considered the defendant's residence in New York, his residence in the United States since 1966; his vast wealth enabling him to produce witnesses in this State, the plaintiff's lack of income and assets; the plaintiff's residency in the United States since 1994; and this State's nexus to the financial issues ancillary to an action for divorce. The Court also notes that the defendant's moving papers contained only his present counsel's unsupported opinion that the Republic of India would assume jurisdiction over a litigation relating to the validity or nullity of the parties' marriage. The expert affidavit included, in the first instance, in the defendant's reply papers, will not be considered by the Court, as the plaintiff had no opportunity to counter same, nor challenge the expertise of the declarant. Further, even if said affidavit had been considered, it opines that an Indian Court would adjudicate a divorce case between non-resident Hindus, but it does not specifically address the viability of an action to declare the validity or nullity of a [*6]marriage. Further, with regard to the cost incident to the production of witnesses, the Court notes that the defendant's expert resides in Canada.

The Court acknowledges the expense that will be incurred transporting witnesses from India to the United States, but the Court doesn't characterize such a trip, as necessarily constituting a hardship for such witnesses, and such expense must be balanced against all the other factors referred to herein above, as well as the cost to the parties of traveling to India and remaining there during the pendency of proceedings in that country. In view of the many affidavits produced by both parties incident to motion practice in the prior action, the Court finds the defendant's complaint as to the inability to subpoena witnesses to be specious. Further, the Court admonishes the parties that it will not entertain inappropriately cumulative testimony. The plaintiff is not expected to produce all 250 purported wedding guests, nor is the defendant expected to produce every villager with knowledge as to the date the officiant in question arrived in town and began to perform wedding ceremonies.

Finally, the Court has considered the defendant's recent transfers of substantial assets (and the tax consequences that may ensue in the event the parties' marriage is sustained). The dismissal of the instant action would clearly afford the defendant the opportunity to accomplish further transfers, prejudicing the plaintiff's right to an equitable award of marital assets should the parties' marriage be declared valid by the Indian court.

As the prior action was dismissed on October 24, 2006 and the instant action commenced on or about October 25, 2006, the portion of the defendant's motion for an order dismissing the instant action on the ground that there is another action pending for the same relief is denied.

The defendant's application for an order granting him a four month continuance at the conclusion of the plaintiff's case so that he will be able to secure witnesses and prepare a defense after he hears plaintiff's case is denied. The defendant's counsel has recognized that even if the plaintiff produces only one or two witnesses, her case will likely withstand a motion to dismiss and the defendant will be obligated to present a defense. In view of the serious and conflicting allegations in this case of witness intimidation and bribery, the Court finds that the proposed continuance would afford the defendant an undue advantage.

In view of all of the foregoing, the defendant's motion is denied in all respects.

As set forth herein above, it appears that the defendant has denuded himself of all his assets except his retirement assets and has rendered himself insolvent. Accordingly, the plaintiff's motion for a temporary restraining order is granted. The temporary restraining order dated November 8, 2006 is modified to the extent that the defendant is ordered to deposit all mandatory withdrawals from his retirement assets into his attorney's escrow account pending further order. Further, Merrill Lynch, Citigroup, and Sanford C. Bernstein & C Purchase Money Plan are hereby restrained from permitting the defendant, his attorneys, agents or assigns from making any withdrawal from accounts on deposit in his name alone or jointly with another, [*7]except for mandatory withdrawals. The defendant's attorney shall serve a copy of this order upon the aforesaid financial institutions accompanied by account numbers pursuant to CPLR 311 within 3 business days of the date of this order and shall provide proof to the plaintiff that such service has been effectuated within 10 days of the date of this order.

This constitutes the decision and order of the Court. The parties and their respective attorneys shall appear for trial on April 17, 2007 at 9:30a.m. on the limited issue of whether or not the parties were married in India.

E N T E R:

_________________________

Anthony J. Falanga, Justice

Supreme Court, Nassau County

Dated: January 29, 2007

Mineola, NY