Order to Show Cause

Glanc Affirmation in Support1-5

Hejailan-Amon Affirmation in Support

Bergonzi Affirmation in Support

Henry Affirmation in Support

Bitbol Affirmation in Support

Wise Affirmation in Support

Amon Affirmation in Opposition A-F

Bronstein Affirmation in Opposition

Heller Affirmation in Oppoistion A-C

Heller Group/Sanford Heller Memorandum in Opposition

Artmon Memorandum in Opposition

Notice of Motion

Weinstein Affirmation in Support A-B

Sanford Heller in Support A-C

Heller Group/Sanford Heller Memorandum in Support

Heller Group/Sanford Heller Memorandum in Further Support

Sanford Reply Affidavit

Hejailan-Amon Affidavit in Opposition A-G

Hejailan-Amon Memorandum in Opposition

Notice of Motion

Amon Affirmation in Support

Bronstein Affirmation in Support A-M

Amon and Artmon Memorandum in Support

Bronstein Affirmation in Further Support A-F

Amon and Artmon Memorandum in Further Support

Hejailan-Amon Affidavit in Opposition A-G

Hejailan-Amon Memorandum in Opposition

The above-referenced motions are consolidated herein for disposition. In the interest of judicial economy, the background of this complex matter will be expatiated only to the extent [*2]necessary to determine the extant motions. This matter involves ownership and control of several major works of contemporary art that were owned and acquired by the parties during their marriage. The wife, Hejailan-Amon, brings causes of action sounding in replevin and conversion because the artworks were removed from 834 Fifth Avenue, Apt 5B, New York, New York (the New York Apartment), an apartment of which the wife claims sole ownership, and stored at a facility elsewhere in New York, in apparent anticipation of the initiation of a divorce proceeding in Monaco.

Wife bases her action in this court on this court's jurisdiction over the property, in rem, and on the principle that once a divorce action has commenced, there should be no removal, transfer, or sale, of property subject to the divorce proceeding, without leave of the court. Husband commenced an action for divorce in Monaco as of September 29, 2015, a date before the alleged improper removal of the artworks, and a date before the commencement of this action. Wife notes that husband attempted to serve her with divorce papers after he removed the subject artworks and put them in storage. See Hejailan-Amon Affirmation ¶ 5. The clear implication is that husband improperly prepared to file for divorce by interfering with marital assets.

On the basis that the artworks are, in the estimation of the wife, marital property, this court awaited the decision of a court with jurisdiction over the separation of marital property in order to make any determination as to the correct disposition of the artworks. In this regard, the wife commenced an action in the matrimonial part in New York, which was dismissed. See Hejailan-Amon v Amon, Supreme Court of the State of New York, Index No. 302751/2016 (Sattler, J.) (the New York Matrimonial Action).

In dismissing the New York Matrimonial Action, Justice Sattler, noted that the parties have a divorce action pending in Monegasque courts, which will, of necessity, address the disposition of marital property, and refrained from entertaining any further current action in these courts. Judge Sattler noted, however, that upon presentation of a divorce decree, this court could exercise its in rem jurisdiction over the property in New York.

This court concurs. On the one hand, where, as here, the parties appear in a divorce proceeding in a foreign state, either party may maintain an action in this state for property within this state's jurisdiction to the extent that such property was not addressed in the divorce action. See Domestic Relations Law (DRL) § 236B(2)(5); see also Young v Knight, 236 AD2d 534, 535 (2d Dept 1997); Nikrooz v Nikrooz, 167 AD2d 334, 335 (2d Dept 1990) ("[s]ince the English court which issued the bilateral divorce decree did not address the financial or property issues and since no agreement resolving those issues was finally entered into by the parties, the doctrine of collateral estoppel has no application to the instant action").

On the other hand, to the extent that the foreign divorce action addresses the subject property and was not fraudulent, this court has, based on the principles of comity, the inherent power to recognize and enforce the Monegasque judgment of divorce. See Robinson v Robinson, 120 AD2d 415, 415—16 (1st Dept 1986) ("party who has properly appeared in a foreign action is ordinarily precluded from attacking the resulting judgment by bringing a collateral New York proceeding"); accord Greschler v Greschler, 51 NY2d 368, 376 (1980).

Therefore, wife's application here is premature at best, and misplaced at worse. This court, in its discretion, will not entertain the disposition of property that is properly subject to the jurisdiction and judgment of a prior pending action in another court, which, to all appearances, and, according to the decision and order of this court in the New York Matrimonial Action, has [*3]proper jurisdiction over the parties for the purposes of divorce and distribution of property. The action is, therefore, dismissed without prejudice.

Accordingly, it is hereby

ORDERED that the application of plaintiff wife Tracey Hejailan-Amon for an order directing that the defendants turn over and return any works of art removed from 834 Fifth Avenue, Apt 5B, New York, New York (motion sequence number 001) is denied without prejudice; and it is further

ORDERED that the applications of defendants to dismiss the action (motion sequence numbers 002 and 003) are granted to the extent that the complaint is dismissed without prejudice.