MK v NK

[*1] MK v NK 2009 NY Slip Op 51440(U) [24 Misc 3d 1213(A)] Decided on June 29, 2009 Supreme Court, New York County Gesmer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 29, 2009
Supreme Court, New York County

MK, Plaintiff,

against

NK, Defendant.



103608/2009



The plaintiff is represented by Raoul Felder, New York, New York, and the defendant is represented by Igor Krol, Krol & O'Connor, New York, New York.

Ellen Gesmer, J.

In this motion, plaintiff MK (Wife) seeks an order barring, enjoining and staying defendant NK (Husband) from maintaining and prosecuting an action for division of the marital property of the parties after the granting of a Judgment of Divorce obtained by him against the Wife in Moscow, Russia. The Husband opposes the motion.

This motion was brought on by Order to Show Cause, signed on May 8, 2009, which scheduled the motion for argument on May 22,2009. On that date, counsel for the parties advised the court that they were trying to reach a global settlement of the matter. Accordingly, counsel signed a stipulation adjourning the motion to June 5, 2009, and further agreeing to stay all proceedings pending between them, both in New York and in Moscow, until that date. On June 5, 2009, the parties advised the court that they were still discussing settlement and they adjourned the motion to June 29, 2009. However, they did not execute a further stipulation.

On June 29, 2009, the parties appeared before the court and counsel for the Wife asked the court to decide this motion forthwith, as the Wife had learned that a proceeding in the appeals court is scheduled in Moscow tomorrow. Accordingly, the court is deciding this motion on an expedited basis, and will decide the motions calendared as Motion Sequence Numbers 1 and 2 at a later date.

FACTS

The parties were married in Russia on July 20, 1985. At that time, the Wife was a doctor in Moscow and the Husband was a lawyer. The parties moved to the United States in 1990 and both obtained US citizenship in 1999. The Husband was admitted to the New York Bar in 1990 and has been working for New York based law firms since then. Since 2005, he has been the partner in charge of the Moscow office of a major New York law firm. The Wife was licensed to practice medicine in New York in 1997. [*2]

In February 2009, the Husband commenced a divorce action against the Wife in two courts in Russia, the Peace Court and the District Court . The Wife then commenced an action for divorce in this court. On March 5, Justice Richter denied the Wife's application for a temporary restraining order to enjoin the Husband from continuing the action for divorce in Russia. On March 13, 2009, both parties appeared in the Peace Court which granted a Judgment of Divorce (the Judgment). The Judgment made no provision for spousal maintenance and distribution of assets. On or about February 12, 2009, the Husband sought distribution of property and assets in Russia. On or about March 27, 2009, the Wife commenced this proceeding, pursuant to DRL 236b(2), seeking maintenance and equitable distribution after the granting of a foreign judgment of divorce.

On April 23, 2009, the Wife's Moscow counsel moved the District Court for an order dismissing the remainder of the Husband's action seeking division of their marital property. On May 13, 2009, the District Court granted her motion to dismiss. Counsel have advised this court that the Husband has appealed from that order.

ANALYSIS

The Wife makes two separate arguments in support of her motion. First, she argues that the court should stay the Husband from proceeding in Russia on the grounds of forum non conveniens. However, counsel submits no authority for his claim that either the common law doctrine of forum non conveniens or its statutory counterpart, CPLR 327, permit a New York court to enjoin a party from proceeding in another jurisdiction. Rather, in all the cases that the Wife cites, the court was asked to employ that doctrine to stay or dismiss the New York proceeding. (See, e.g., Islamic Republic v Pahlavi, 62 NY2d 474 [1984], cert den, 469 US 1108 [1985]). Neither CPLR 327 nor the case law applying forum non conveniens provides any basis for employing the doctrine to prevent a party from proceeding in another jurisdiction.

Alternatively, the Wife relies on Rosenbaum v Rosenbaum (285 AD427 [1st Dept 1955]) and Greenberg v Greenberg (218 AD 104 [1st Dept 1926]), claiming that those cases support her position that a New York court has the power to enjoin and restrain residents within its jurisdiction from prosecuting an action commenced in a foreign jurisdiction. However, the Wife fails to mention that the Court of Appeals reversed the Appellate Division decision in Rosenbaum and vacated the injunction it had issued (309 NY 371[1955]). In that decision, the Court of Appeals explained that the wife in that case had no need of "the drastic relief of injunction" since she argued that the decision of the foreign court was not entitled to full faith and credit. In addition, in that decision, the Court of Appeals also pointed out that it had rejected the reasoning in Greenberg in Goldstein v Goldstein (283 NY 146 [1940]). Thus, neither of the cases relied on by the Wife are still good law.[FN1]

Far more relevant is Arpels v Arpels (8 NY2d 330 [1960]), cited by the Husband, in [*3]which the Court of Appeals denied the application of the plaintiff wife to enjoin her husband from suing her for divorce in France. Of particular note, the court held, citing Rosenbaum, that The use of the injunctive power to prohibit a person from resorting to a foreign court is a power rarely and sparingly employed, for its exercise represents a challenge, albeit an indirect one, to the dignity and authority of that tribunal. Accordingly, an injunction will be granted only if there is danger of fraud or gross wrong being perpetrated on the foreign court. Furthermore, where a foreign divorce is sought, our courts will intrude, even if a serious impropriety would be involved in its procurement, only when the ensuing decree would be entitled to full faith and credit in this State.

(8 NY2d at 341 - 2). The court went on to explain that, because a French divorce judgment is not entitled to full faith and credit, an injunction did not lie. The same result applies here.

Accordingly, the Wife's motion is denied.

This constitutes the decision and order of the Court.

Dated: June 29, 2009So Ordered:

____________________

ELLEN GESMER, J.S.C. Footnotes

Footnote 1:The other cases cited by the Wife are not on point.