The following papers numbered 1 to 4 read on this motion and cross motion:

Papers Numbered

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and

Affidavits (Affirmations) Annexed1, 2

Opposing Affidavits (Affirmations)3 & 4

Reply Affidavits (Affirmations)

Affidavit

Other Papers

Plaintiff-husband Yeheskel Salman moves, by order to show cause dated June 14, 2011, for an order: (1) directing defendant-wife to produce the subject child, R. A. S., in this court; and (2) transferring custody from the wife to the husband; and (3) granting such other and further relief as the court may determine.

The wife cross-moves for an order: (1) staying this action based upon the fact that, prior to the commencement of this action, the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida has exercised emergency jurisdiction concerning the custody and protection of our son, R. A. S., 22 months old, DOB August 19, 2009 which proceeding is currently pending; (2) confirming that this court will confer with the Florida court regarding which Court should handle the issues regarding custody and visitation of our son pursuant to DRL 76-f; (3) that following this court's conferring with the Florida court, this court enter an order declining jurisdiction and allowing the Florida court to resolve all issues regarding custody and visitation with respect to the parties' child pursuant to DRL 76-f; (4) or, in the alternative, should this court exercise jurisdiction of the issue of custody, it should issue an order that defendant should continue to have temporary custody of the child, with the protections contained in the order of the Florida Court; and (5) granting such other and further relief as to this court may seem just and proper.

The Hon. Charles E. Burton in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County Florida entered an order on July 6, 2011 pursuant to the UCCJEA that states in part:

A. It appears to this Court that New York should ultimately be the jurisdiction to handle the dissolution of marriage and child custody issues. Notwithstanding, this Court finds that pursuant to F.S. §61.517, it is necessary for this Court to exercise temporary emergency jurisdiction as no prior child custody determinations have been made by another court having jurisdiction. While a petition for dissolution of marriage has been filed in New York, New York has not exercised jurisdiction or entered any child custody orders and the Court finds that the mere filing of a petition does not divest this Court of jurisdiction.

B. Since this Court believes that New York is the appropriate jurisdiction, this Court will yield to the findings made by Judge Sunshine at his hearing scheduled for August 3, 2011 in New York. Until that time, the temporary injunction entered by the Court shall remain in effect.

An application before Judge Burton for reconsideration of his decision was denied by him on July 21, 2011.

The parties herein were married in a religious ceremony on June 1, 2008, in [*2]Aventura, Dade County, Florida. There is one (1) child (hereinafter referred to as RAS) of this marriage who was born in August 2009 recently turned two (2) years of age. The husband commenced the instant action for divorce in Kings County, New York and for custody of the minor child on or about June 14, 2011. At the time the action for divorce was commenced, the parties were living apart for several months. The wife instituted an action for divorce in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida and filed and received an ex-parte injunction on March 18, 2011 enjoining either party from removing the child from the State of Florida and allowing supervised visits with the child. The wife predicated her original petition on the grounds of domestic violence and the husband's allegedly ordering the wife to take the child and reside with the maternal grandparents in Boca Raton, Florida. Her petition in Florida has since been amended on July 5, 2011 to include claims for both spousal and child support and alleging assault, battery and cyber stalking by electronic communication in Florida.

On August 16, 2011, this court conducted a joint hearing with Judge Burton

pursuant to New York State Domestic Relations Law (DRL) section 76-(f)(3) on the record.The wife was present at the courthouse in Florida with Florida counsel appearing on behalf of their clients in Florida. The husband simultaneously appeared here in Kings County where both parties were also represented by New York counsel. At the hearing both counsel conceded that New York was the "home state" of the infant based upon the fact that the child has not resided in Florida for six (6) months prior to the commencement of the Florida action (see DRL 75 (a) (7)). The husband has steadfastly argued that the issues of custody and visitation should be argued before a New York Court. Conversely, the wife has steadfastly maintained that New York is an inconvenient forum and that pursuant to DRL 76- (f) and (g) this court should decline jurisdiction and allow the court in the State of Florida to try the issues of custody and visitation. At the UCCJEA joint conference between the two courts, Judge Burton indicated that he would accept jurisdiction of the issues of custody and visitation, if this court were to determine that New York was an inconvenient forum.

The wife predicates her claim of inconvenient forum upon the following:

(1) There is a history of domestic violence and the husband has exercised power over her.

The wife alleges that the husband forced her to leave the residence they were occupying in the home of the husband's parents in Brooklyn, New York and to move to Florida after a dispute as to the proper color to paint the child's room. In her amended pleading in Florida the wife alleges additional acts in Florida whichconstitute domestic violence. The wife also indicates that the husband has acted inappropriately during visitation some of which have occurred via Skype. The wife avers that the acts occurred in Florida after the original petition was filed and that these acts will be a part of a custody proceeding.

(2) The husband has refused to provide adequate support for the wife and the child. Furthermore, in April 2011 the husband ceased paying any spousal or child support and canceled the wife's credit cards.

The wife indicates that she has no means of support to maintain herself in the lifestyle of the parties during the marriage other than the support she receives from living with and by her parents in Florida. The wife also maintains that the husband does not support her, nor will he provide her with adequate funds once she returns to New York. The wife avers that she has no place to live in Brooklyn, New York.

(3) That the wife and child have resided in Florida for more than five (5) months before this action in New York was commenced and that the wife and child moved to Florida after the husband forced them to leave the marital home they were occupying with [*4]the husband's parents in Brooklyn, New Yorkand that the husband told the wife to leave. The wife alleges that the husband saw them pack over 40 boxes during a three day period and consented to a permanent move.

(4) That there was an agreement for the wife to live with her parents in Florida and a concession that the issue of custody and visitation would be heard in Florida and same was confirmed in an e-mail from the husband^[FN1].

(5) That the husband took affirmativesteps recognizing that Florida was where the child would reside such as paying for child care in Florida and by asking the wife to seek a refund from the daycare provider in Brooklyn and verifying same in writing.

(6) That the husband knew the cost of the move and that all of the wife's and child's belongings and possessions were moved to Florida which is supported by documentary evidence. The wife also provides a copy of the check from the husband paying the movers fee for her move from New York to Florida.

(7) That the child, the wife and the maternal grandparents all of whom reside in the State of Florida will be witnesses in any proceeding. The wife contends that the husband called the maternal grandmother who was vacationing in Vermont on January 26, 2011 and demanded that the grandparents come to New York and take the wife and child back to Florida. She states that the maternal grandmother helped pack the wife's and the child's belongings.

(1) There is no history of domestic violence and no domestic incident reports have been filed and that the claim of domestic violence is a fabrication;

(2) The move to Florida was to be a temporary move, with the wife returning with the child once their new home which was being built in Brooklyn, New York was complete (The wife claims this home was valued at $1.5 million dollars and was funded by the husband's father who is also his employer). The husband claims that the furnishings and belongings that were moved were already in boxes from a prior move; and that he did not know the move to Florida was a permanent move.

(3) The husband will voluntarily pay for the wife and child's transportation to New York and that they can live in an empty home that his cousin's own in Brooklyn, New York since the home being built for the parties is no longer available. The husband alleged at oral argument that he earns $200.00 per week and then maintained he also earned $42,000.00 per year as an employee of his father's company. This Court notes that at oral argument the husband could not commit to providing adequate support to provide for the wife and child to reside in New York during the litigation. He states that the email was a quid pro quo for the husband receiving substantial visitation which was never [*5]agreed upon.

(4) The husband avers that the e-mail that the wife states establishes his concession to her move to Florida with the parties' child and to Florida jurisdiction for the determination of custody and visitation was part of a negotiation to attempt to settle the matter and not an agreement.

(5) The husband avers that substantial evidence exists in New York on the issue of custody and visitation.

The wife's application for the issues of custody and visitation to be heard in Florida under the doctrine of inconvenient forum pursuant to NY DRL Section 76-(f) and DRL 76(g) of the UCCJEA is granted after consultation between the Florida Court and the New York Court.

Inasmuch as New York is the "home state" of the child pursuant to Domestic Relation Law section 75-a(7) the New York Court must determine if the home state is an inconvenient forum. CPLR 327 states, in part, that

(a) 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 party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.

The Appellate Division, Second Department has held that "[i]f, . . ., the court determines that it does retain exclusive and continuing jurisdiction over the custody issue, it may exercise that jurisdiction or it may decline to do so if it finds, after considering the factors set forth in Domestic Relations Law § 76—f(2)(a)—(h) and allowing the parties to be heard, that New York is an inconvenient forum (see Matter of Recard v. Polite, 21 AD3d 379, 380, 799 N.Y.S.2d 578; Matter of Rey v. Spinetta, 8 AD3d 393, 394, 777 N.Y.S.2d 746)." (Elbakri v. Farag, 71 AD3d 767, 895 N.Y.S.2d 732 [2 Dept. 2010]; see Wnorowska v. Wnorowski, 76 AD3d 714, 907 N.Y.S.2d 308 [2 Dept., 2010]; see also Blerim M. v. Racquel M., 41 AD3d 306, 839 N.Y.S.2d 57 [1 Dept.,2007] ["A court with continuing exclusive jurisdiction may nonetheless decline to exercise such jurisdiction "if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum" (Domestic Relations Law § 76-f[1] ). However, before declining jurisdiction in favor of a court of another state, a New York court must consider the factors set forth in § 76-f(2)and permit the parties to submit information with respect to all relevant factors (Matter of Greenidge v. Greenidge, 16 AD3d 583, 792 N.Y.S.2d 165 [2005] )"]).

It appears to the satisfaction of this court that the husband consented to the wife moving with the child to Florida, and finds credible the claim that he knew the wife and her mother packed 40 boxes of personal belongings and furnishings, moved to Florida [*6]and that the move was not a temporary one. The indicia of a permanent move on consent is bolstered by the e-mail consent, by the husband, to the Florida court's jurisdiction on the issue of custody and the financial arrangements made by the husband to contribute to the child's care while in Florida and pay part of the cost of the movers. This coupled with the husband's inconsistent statements in open court as to his earnings and ability to support the wife and child if they returned to New York and his inability and unwillingness to post an undertaking to provide for their care, support and maintenance during the period of litigation in New York, lead this court to conclude that New York is an inconvenient forum. The court notes that the acts of domestic violence alleged by the wife in her amended petition dated July 5, 2011 which occurred in Florida would constitute the basis for an ex-parte order of protection in the State of New York pursuant to DRL section 240.

After consultation with the Hon. Charles Burton in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County Florida the wife's application for the issues of custody and visitation to be heard by the court in the State of Florida is granted. This court considered the wife and child's relocation to Florida where they reside with the maternal grandparents who are providing the wife and the child support and shelter and have done so for a period in excess of five (5) months prior to the commencement of the instant litigation. The wife and child are in Florida with the initial consent of the husband. The maternal grandmother, who is also a necessary witness, is also located in Florida. Under the circumstances presented, New York is an inconvenient forum to decide these issues.

The foregoing constitutes the decision and order of the court.

E N T E R

JEFFREY S. SUNSHINE

J. S. C.