SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------X : IN THE MATTER OF THE APPLICATION PURSUANT TO SECTION 7701 OF THE : CIVIL PRACTICE LAW AND RULES FOR THE CONSTRUCTION OF THAT CERTAIN : MICHAEL A. LORIG REVOCABLE TRUST, U/A/D JUNE 22, 2014, : BY CAROLINE BERTHET, AS SUCCESSOR : Index No. 153674/2017 TRUSTEE and BENEFICIARY, : Petitioner, : - Against - : MATTHEW BRIAN LORIG, ANDREW MICHAEL LORIG, ELIZABETH : DALY, and BANK OF NEW YORK MELLON, : Respondents. ---------------------------------------------X PETITIONER S MEMORANDUM IN OPPOSITION TO RESPONDENTS MOTION TO DISMISS 077454-001/00087181-1 1 of 25
Table of Contents Table of Authorities... (ii) PRELIMINARY STATEMENT... 1 ARGUMENT... 6 PETITIONER S CPLR 7701 APPLICATION IS PROPERLY BEFORE THE COURT... 6 RESPONDENTS HAVE FAILED TO PROVIDE DOCUMENTARY EVIDENCE THAT UTTERLY REFUTES PETITIONER S FACTUAL ALLEGATIONS... 7 The Need to Resort to Andrew Lorig s Affidavit Requires the Denial of the Rule 3211(a)(1) Motion... 7 Respondents Misstate the Law... 10 NEW YORK IS THE PROPER VENUE FOR THIS APPLICATION... 14 A Petitioner s Choice of Forum Should Rarely Be Disturbed... 14 The Respondents Face a Heightened Burden Because The Petitioner Resides in New York... 16 A Respondent Moving to Dismiss For Forum Non Conveniens Bears A Heavy Burden Which is Even Greater Where, as Here, a Respondent is Present In New York... 17 CONCLUSION... 20 077454-001/00087181-1 2 of 25
Table of Authorities Cases Amsterdam Hosp. Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431 [1st Dept 2014]... 7 Anagnostou v Stifel, 204 AD2d 61 [1st Dept 1994]... 15 Antoine v Boyland, 21 Misc 3d 298 [Sup Ct 2008]... 6 Aon Risk Sen's., Northeast v. Cusack, 34 Misc3d 1234[A], 2012 NY Slip Op 50366[U] (NY Co. 2012)... 18 Banco Ambrosiano, S.P.A. v Artoc Bank & Trust Ltd., 62 NY2d 65 [1984]... 17, 18 Berger v Temple Beth-El of Great Neck, 303 AD2d 346 [2d Dept 2003]... 8 Demas v 325 W. End Ave. Corp., 127 AD2d 476 [1st Dept 1987]... 8 Granada Condominium III Ass'n v Palomino, 78 AD3d 996 [2d Dept 2010]... 8 Highgate Pictures, Inc. v De Paul, 153 AD2d 126 [1st Dept 1990]... 16 Islamic Republic of Iran v Pahlavi, 62 NY2d 474 [1984]... 14 Jeffers v. Am. Univ. of Antigua., 2014 N.Y. Slip Op 30669[U], 2014 N.Y. Misc. LEXIS 1244, *2-3 (NY Co. 2014)... 17 Kappa Dev. Corp. v Queens Coll. Point Holdings, LLC, 95 AD3d 1178 [2d Dept 2012]... 8, 9 Matter of Maruccia's Estate, 54 NY2d 196 [1981]... 10, 11, 12 077454-001/00087181-1 ii 3 of 25
Matter of Will of Chmiel, 164 Misc 2d 854 [Sur Ct 1995]... 11 Mill Fin., LLC v Gillett, 122 AD3d 98 [1st Dept 2014]... 8 OrthoTec, LLC v Healthpoint Capital, LLC, 84 AD3d 702 [1st Dept 2011]... 18 Sweeney v Hertz Corp., 250 AD2d 385 [1st Dept 1998]... 15, 17 Walker v Steers, 14 NYS 398 [NY Gen Term 1891]... 11 Wittich v Wittich, 210 AD2d 138 [1st Dept 1994]... 17, 18 Statutes NY EST POW & TRST 3-4.3 [McKinney]... 10 Rules NY Civil Practice Law and Rule 304(a)... 6 NY Civil Practice Law and Rule 403(d)... 1, 6, 20 NY Civil Practice Law and Rule 3211(a)(1)... passim NY Civil Practice Law and Rule 4519... 3, 13 NY Civil Practice Law and Rule 7701... passim 077454-001/00087181-1 iii 4 of 25
PRELIMINARY STATEMENT Rather than serve an Answer in response to the Petition, respondents Matthew Brian Lorig, Andrew Michael Lorig and Elizabeth Daly (collectively referred to as the Respondents ) have moved to dismiss. They make 3 misguided arguments in support of their motion. First, the Respondents claim that this Article 77 proceeding should be dismissed because the application for relief is premature. In making that claim, the Respondents confuse the Order to Show Cause pursuant to which this proceeding was commenced based upon the authority of Section 403(d) of the CPLR with a motion for summary judgment. * * * Second, the Respondents seek dismissal pursuant to Rule 3211(a)(1) of the CPLR based upon the claim that the factual allegations of the Petition are contradicted by documentary evidence that resolves all factual issues as a matter of law. (Respondents Brief at p. 6.) This argument is sophistry. We agree that the Post-Nuptial Agreement, dated July 077454-001/00087181-1 5 of 25
28, 2016, between Michael Lorig and Caroline Berthet (Exhibit 3 to the Petition; the Post-Nuptial Agreement ) is unambiguous and therefore the Court can construe the Post-Nuptial Agreement based upon only the document itself and conclude that Caroline Berthet has not waived her rights, as beneficiary and as the wife of the late Michael Lorig, under the Michael A. Lorig Revocable Trust, u/a/d June 22, 2014 (Exhibit 1 to the Petition; the Trust ). However, the Respondents do not rely upon the provisions of the Post-Nuptial Agreement in order to make their argument for dismissal pursuant to Rule 3211(a)(1). Instead, the Respondents rely upon the Affidavit of Respondent Andrew Michael Lorig, sworn to on June 28, 2017. As we shall explain, affidavits do not constitute documentary evidence for purposes of Rule 3211(a)(1), and so that aspect of the motion to dismiss must be denied. We also point out that Andrew Lorig s Affidavit is infirm in many respects. In making claims about what Andrew Lorig supposedly learned from his late father about his late father s marriage to the Petitioner, Andrew Lorig s Affidavit is nothing more than hearsay, and Andrew Lorig will be precluded from testifying about the unsupported and unsupportable claims 077454-001/00087181-1 2 6 of 25
in his Affidavit because of the prohibitions of Section 4519 of the CPLR, the Deadman s Statute. Andrew Lorig s motives for making the claims in his self-serving Affidavit are obvious he stands to lose millions of dollars in inheritance if the Court confirms that the clear provisions of the Post-Nuptial Agreement do not preclude the Petitioner from enjoying the benefits granted to her by her late husband through the Trust. For this reason, Andrew Lorig has gone out of his way to fabricate claims about the marriage between Caroline Berthet and his late father in order to create ambiguity in the provisions of the Post-Nuptial Agreement and substitute his own interpretation of that document. We are opposing a motion to dismiss based upon Rule 3211(a)(1) and so we need not parse the factual inaccuracies of Andrew Lorig s Affidavit. (We will address the factual inaccuracies in Caroline Berthet s Reply Affidavit that will be submitted in further support of the Petition.) In addition to noting that the use of Andrew Lorig s Affidavit in and of itself militates against the pre-answer dismissal sought by the Respondents, and in addition to noting the evidentiary infirmities of the Affidavit, we also point out that Andrew 077454-001/00087181-1 3 7 of 25
Lorig s claims with regard to the Michael Lorig and Petitioner s decision to enter into the Post-Nuptial Agreement are illogical. As indicated in the first page of the Post-Nuptial Agreement, Caroline Berthet and Michael Lorig were parties to that certain Pre-Nuptial Agreement, dated April 13, 2011 1 (the Pre-Nuptial Agreement ); and that Pre-Nuptial Agreement was being superseded by the Post-Nuptial Agreement. The Pre-Nuptial Agreement included reciprocal waivers in each party s respective money or assets, and so this justification for the execution of the Post-Nuptial Agreement as claimed in Andrew Lorig s Affidavit (in paragraph 7 in particular) makes no sense. Stated otherwise, Caroline Berthet and Michael Lorig had already remove[d] money as an issue from their marriage through the execution of the Pre-Nuptial Agreement, and so Andrew Lorig s self-serving claims about the reasons for the execution of the Post-Nuptial must be rejected. (As we will also explain in a Reply Affidavit in further support of the Petition, Andrew Lorig himself was the one who had drained his father financially through a series of 1 A copy of the Pre-Nuptial Agreement is annexed to the Affirmation of Jeffrey T. Strauss, dated July 17, 2017, and submitted in opposition to Respondents motion to dismiss. 077454-001/00087181-1 4 8 of 25
bad investments; and Caroline Berthet will confirm that it was always Michael Lorig s intention to provide for her financially through the Trust in the event of his death because Michael Lorig expected and intended that his children, the Respondents in this proceeding -- with whom Michael Lorig did not have good relations as a consequence of his decision to divorce their mother -- would be taken care of financially by their mother, Michael Lorig s former wife.) * * * Third, based upon the applicable law, the Petitioner is entitled to have this proceeding decided by a New York Court applying New York law. Her selection of a New York forum is to be given great weight, and the Respondents cannot meet their heavy burden of proof which will require that they prove both that New York is an inappropriate forum and that there is a better forum in which this proceeding should be prosecuted. * * * We turn now to the presentation of our arguments that warrant the denial of the Respondents motion to dismiss. 077454-001/00087181-1 5 9 of 25
ARGUMENT PETITIONER S CPLR 7701 APPLICATION IS PROPERLY BEFORE THE COURT We first address the Respondents argument that this proceeding should be dismissed because it is somehow premature. It is not, and that basis of the Respondents motion should be denied. A proceeding pursuant to Section 7701 of the CPLR is a special proceeding. As a special proceeding, CPLR 304(a) requires that this Article 77 proceeding be commenced by filing a petition. Contrary to Respondents characterization of this proceeding as a motion (Respondent s Brief at page 5), what is before the Court is a special proceeding pursuant to Section 7701 which is supported by a Petition and an Order to Show Cause as authorized by Section 403(d) of the CPLR. Accordingly, Petitioner properly commenced this proceeding [see Antoine v Boyland, 21 Misc3d 298, 301 02 (Kings Co 2008)( [a] special proceeding is commenced by filing a petition ], and so the Respondents motion to dismiss based upon the claim of prematurity must be denied. 077454-001/00087181-1 6 10 of 25
RESPONDENTS HAVE FAILED TO PROVIDE DOCUMENTARY EVIDENCE THAT UTTERLY REFUTES PETITIONER S FACTUAL ALLEGATIONS We turn now to the portion of the Respondents motion that seeks dismissal of this proceeding based upon Rule 3211(a)(1), defense founded upon documentary, evidence. In support of that aspect of their motion, the Respondents offer the Post-Nuptial Agreement between Caroline Berthet and Michael Lorig and the Affidavit of Andrew Lorig, sworn to on June 28, 2017. The Need to Resort to Andrew Lorig s Affidavit Requires the Denial of the Rule 3211(a)(1) Motion As the First Department explained in Amsterdam Hosp. Group, LLC v. Marshall-Alan Assoc., Inc., 120 AD3d 431, 433 (1st Dept 2014): [A] motion to dismiss under CPLR 3211(a)(1) obliges the court to accept the complaint's factual allegations as true, according [sic] to plaintiff the benefit of every possible favorable inference, and determining only whether the facts as alleged fit within any cognizable legal theory. Dismissal is warranted only if the documentary evidence submitted utterly refutes plaintiff's factual allegations, and conclusively establishes a defense to 077454-001/00087181-1 7 11 of 25
the asserted claims as a matter of law. (internal cites omitted). According to the First Department, documentary evidence must utterly refute[] Plaintiff s factual allegations, in order to mandate dismissal under CPLR 3211(a)(1). Mill Fin., LLC v. Gillett, 2014 N.Y. Slip Op. 06039, at *1-2(1st Dept Sept. 4, 2014). [T]he documentary evidence must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim. Berger v. Temple Beth-El of Great Neck, 303 AD2d 346, 347 (2nd Dept 2003). For a Rule 3211(a)(1) defense to succeed, the proffered documentation must definitively dispose of the claim. Demas v. 325 W. End Ave. Corp., 127 AD2d 476, 477 (1st Dept 1987). Most importantly, affidavits are not documentary evidence capable of utterly refuting a claim. Kappa Development Corp. v. Queens College Point Holdings, LLC, 95 AD3d 1178, 1179, 945 NYS2d 339, 340 (2nd Dept 2012) ( An affidavit does not constitute documentary evidence for purposes of CPLR 3211(a)(1) ); Granada Condominium III Ass'n v. Palomino, 78 AD3d 996, 996 97 (2d Dept 2010) ( [i]t is clear that affidavits [are not] within the intendment of CPLR 3211(a)(1) ). 077454-001/00087181-1 8 12 of 25
Significantly, in Kappa Development v. Queens College Point, supra, the appellate tribunal expressly rejected the use of an affidavit to supplement what the movant in that case argued was a written waiver of a mechanic s lien that would support dismissal pursuant to Rule 3211(a)(1). Here, contrary to Respondents assertions, the terms of the Post-Nuptial Agreement do not waive Caroline Berthet s rights under the Trust. Respondents do not and cannot point to one single section of the Post-Nuptial Agreement that conclusively waives Petitioner s rights under the Trust. Accordingly, for this reason alone, Respondents motion must be denied, as the Post-Nuptial Agreement s terms do not utterly refute or otherwise dispose of Petitioner s claim. The weakness of Respondents argument is underscored by their need to resort to an affidavit to explain their interpretation of the Post-Nuptial Agreement with unsupported, unsupportable and infirm claims about the circumstances under which the Post-Nuptial Agreement was supposedly executed, as presented in Andrew Lorig s Affidavit. By submitting Andrew Lorig s Affidavit, Respondents implicitly admit that, in order for the Court to accept their interpretation of the Post-Nuptial Agreement, the Court must first find that the Post-Nuptial 077454-001/00087181-1 9 13 of 25
Agreement is ambiguous and then resort to extrinsic evidence. For this reason, again, the Court must deny the Respondents motion to dismiss pursuant to Rule 3211(a)(1). The Respondents Misstate The Law In 1981, the Court of Appeals overruled prior caselaw and set the standard by which the language of a separation agreement would be judged for a court to conclude that such an agreement revoked a prior testamentary disposition. Matter of Maruccia s Estate, 54 NY2d 196 (1981). Our highest court held that there must be an explicit renunciation of the testamentary disposition by the beneficiary or the document offered in support of the claim of revocation must use language which clearly and unequivocally manifests an intent on the part of both spouses to give up their rights as beneficiaries. The Court of Appeals wrote (at p. 76): With this in mind, we hold that in order for a separation agreement to have the effect of revoking a prior devise or bequest pursuant to EPTL 3-4.3, the agreement must either contain a provision whereby the spouse explicitly renounces any testamentary disposition in his or her favor made prior to the date of the separation agreement or employ language which 077454-001/00087181-1 10 14 of 25
clearly and unequivocally manifests an intent on the part of the spouses that are no longer beneficiaries under each other s wills. To the extent that Matter of Hollister indicates that a general waiver of rights against the estate of a spouse is sufficient to render the separation agreement wholly inconsistent with a prior devise or bequest or that revocation of a testamentary disposition may be reasonably implied from the language of a subsequent separation agreement, it is overruled. The Court of Appeals made it quite clear in its decision that any prior caselaw to the contrary or employing a more relaxed standard was overruled (see Estate of Marrucia, supra, at p.77), and so the Respondents reliance upon Walker v. Steers, 60 Hun 576 (1891), a lower court decision rendered in the Fourth Department 90 years before the Court of Appeals decision in Estate of Marrucia, supra, is misplaced. The Court of Appeals requirement that there be an explicit renunciation by the beneficiary or a clear and unequivocal manifestation of an intent to give up rights as a beneficiary should apply to a post-nuptial agreement with the same force as the requirement applied to a separation agreement in Estate of Marrucia, supra, and in Matter of Chmiel, 164 Misc 2d 854 (Surrogates Court, Broome County 1995). Stated otherwise, there is not a sufficient difference between the 077454-001/00087181-1 11 15 of 25
estate waiver clauses in post-nuptial agreements and the estate waiver clauses in separation agreements for there to be a relaxation of the strict construction standard required by the Court of Appeals in Estate of Marrucia, supra. Applying the legal postulates just mentioned to the Respondents motion to dismiss based upon Rule 3211(a)(1), their claim that the Post-Nuptial Agreement in and of itself and by itself somehow warrants the dismissal of the Petition must fail and the motion must be denied. First, in rejecting the application of the Court of Appeals decision in Estate of Marrucia, supra and in insisting upon applying a lower court decision from 1891, the Respondents have misstated the law. Second, and perhaps more to the point for the purpose of this Rule 3211(a)(1) motion, it is only the Respondents insistence upon the use of a relaxed and inapplicable standard for the determination of revocation and their use of an extrinsic affidavit that facilitates their claim that the Post- Nuptial Agreement is wholly inconsistent with the Will and the Trust and so there was a revocation. Stated obversely, it is only with the impermissible use of Andrew Lorig s Affidavit -- a 077454-001/00087181-1 12 16 of 25
self-serving affidavit made by an interested beneficiary of Michael Lorig s estate who stands to lose millions of dollars of inheritance and who offers only hearsay and surmise that would also be barred by the Deadman s Statute, CPLR Section 4519 2 -- that the Respondents bootstrap themselves into the argument that the Post-Nuptial Agreement is wholly inconsistent with the Will and the Trust and therefore the Post-Nuptial Agreement must have revoked the Will and the Trust. Third, and in that same vein, in no way can it be said that the Post-Nuptial Agreement standing by itself -- and without the unsupported and unsupportable claims of Andrew Lorig s Affidavit -- utterly refutes the factual allegations in the Petition that is now before the Court. The Post-Nuptial Agreement as a document by itself does not have the explicitness or the clear and unequivocal manifestation of intent required by the Court of Appeals to support the Respondents argument that the Post-Nuptial Agreement is wholly inconsistent with the Will and the Trust 2 We respectfully refer the Court to our reply papers in further support of the Petitioner s application for relief in this Article 77 proceeding for a more detailed analysis of the inaccuracies and infirmities of Andrew Lorig s affidavit offered in support of the Respondents motion to dismiss. 077454-001/00087181-1 13 17 of 25
and therefore revoked the provisions that Michael Lorig made for his wife in those documents. That being so, the motion to dismiss based upon a defense founded upon documentary evidence, Rule 3211(a)(1), must be denied. NEW YORK IS THE PROPER VENUE FOR THIS APPLICATION Finally, we address that portion of the Respondents motion that seeks dismissal based upon Rule 327(a), inconvenient forum. A Petitioner's Choice of Forum Should Rarely Be Disturbed A court may stay or dismiss an action if it finds that in the interest of substantial justice the action should be heard in another forum. CPLR Rule 327(a). However, [t]he burden rests upon the [respondent] challenging the forum to demonstrate relevant private or public interest factors which militate against accepting the litigation. Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 479 (1984), cert denied 469 U.S. 1108 (1985). It is well settled that a [petitioner s] choice of forum should not be disturbed absent a balance of factors 077454-001/00087181-1 14 18 of 25
strongly favoring the [respondents]. Sweeney v. Hertz Corp., 250 AD2d 385, 386 (1st Dept 19980; see also Anagnostou v. Stifel, 204 AD2d 61 (1st Dept 1994) ( Unless the balance is strongly in favor of [respondent], [petitioner s] choice of forum should rarely be disturbed. ). The proceeding now before this Court is not the rare case where the Petitioner should be denied her choice of forum, particularly given that: (i) she resides in New York; (ii) the Post-Nuptial Agreement at issue (Petition Ex. 3) was executed in New York and has a New York choice of law clause in paragraph 63 at page 35; (iii) the Trust (Petition Ex. 1) has a New York choice of law clause in Article XVIII at page 26; (iv) the Will (Petition Ex. 2) references the application of New York law in Article VII, Par C at page 4, Article VIII Par D at page 7, and Article IX at page 7; and (v) witnesses that the Respondents intend to call are located in New York. (Footnote 3 at page 5 of the Respondents Brief indicates that Respondents intend to call New York lawyers as witnesses.) 3 In addition, Respondents Matthew Brian Lorig and Elizabeth Daly live in Greenwich, 3 We do not concede that such discovery is necessary. The Post- Nuptial Agreement is unambiguous; and parol evidence is not needed for the Court to construe the document. 077454-001/00087181-1 15 19 of 25
Connecticut and Boston, Massachusetts, respectively, and so their residences are proximate to New York. The Respondents Face a Heightened Burden Because The Petitioner Resides in New York A movant's burden is even higher where, as here, the Petitioner resides in New York, in which case a forum non conveniens motion should be denied unless New York is both an inappropriate forum and another forum is more convenient for the parties, neither of which is the case here. In order to succeed on a motion to dismiss where the petitioner or plaintiff is a New York resident, the movant must demonstrate both that New York is an inconvenient forum and another forum is a better forum in which the action or proceeding should be prosecuted. As the First Department explained, [a] New York resident plaintiff will not be deprived of its home forum unless it plainly appears that New York is an inconvenient forum and that another is available which will best serve the ends of justice and the convenience of the parties. Highgate Pictures, Inc. v. De Paul, 153 AD2d 126, 129 (1st Dept 1990) (internal quotes omitted) (finding lower court improperly granted defendant's motion to dismiss the complaint on forum non conveniens grounds). 077454-001/00087181-1 16 20 of 25
Although no one factor is determinative, Petitioner s New York residence should generally be the most significant factor in the equation. Sweeney v Hertz Corp., supra, at 386. Also, unless the balance of the factors is strongly in favor of [respondent], petitioner s choice of forum should rarely be disturbed. Jeffers v. Am. Univ. of Antigua., 2014 N.Y. Slip Op 30669[U], *2, 2014 N.Y. Misc. LEXIS 1244, *2-3 (NY Co. 2014) (denying forum non conveniens motion) (citations omitted). A movant s burden is even higher when the petitioner is a New York resident. A defendant has a heavy burden in attempting to establish that New York is an inappropriate forum... This burden becomes even more onerous where the plaintiff is a New York resident, as is the case here. Wittich v. Wittich, 210 AD2d 138, 139 (1st Dept 1994). A Respondent Moving to Dismiss For Forum Non Conveniens Bears A Heavy Burden Which Is Even Greater Where, As Here, A Respondent Is Present In New York A defendant who alleges that New York is an inappropriate forum bears a heavy burden in demonstrating that another forum would be preferable. Wittich v. Wittich, supra; see also Banco Ambrosiano, S.p.A. v. Artoc Bank & Trust, Ltd., 077454-001/00087181-1 17 21 of 25
62 NY2d 65, 74 (1984) (finding that a defendant moving to dismiss for forum non conveniens bears a heavy burden of demonstrating that the forum chosen by [the plaintiff] is an inappropriate one... ). Moreover, it is clear that if a defendant... here, has a presence in New York, or regularly transactions [sic] business in New York, courts will not give credence to the complaint that New York is an inconvenient forum. Aon Risk Sen's., Northeast v. Cusack, 34 Misc3d 1234[A], 2012 NY Slip Op 50366[U], *6 (NY Co. 2012) (Fried, J.), aff'd 102 AD3d 461 (1st Dept 2013); see also Wittich v. Wittich, supra ( Indeed, since [the defendant] maintains his principal place of business in New York, he cannot reasonably argue that he is inconvenienced by having the case heard in New York rather than [another state]. ); OrthoTec, LLC v. Healthpoint Capital, LLC, 84 AD3d 702, 703 (1st Dept 2011) ( The fact that defendants are New York residents weighs against forum non conveniens dismissal. ) At least one of the respondents in this proceeding, Bank of New York Mellon, has a presence in New York and regularly transacts business here. Accordingly, the moving Respondents bear an even more substantial burden to have this 077454-001/00087181-1 18 22 of 25
proceeding dismissed based on forum non conveniens, and they have not and cannot meet that burden. We also point out that Respondent Matthew Brian Lorig resides in Greenwich, Connecticut (Petition Par 5) and Respondent Elizabeth Daly resides in Boston, Massachusetts (Petition Par 6), and New York would be a more convenient forum for them. * * * Here, New York most certainly is not an inconvenient forum; rather, it is the most convenient forum and it would be very costly and burdensome for Petitioner to have to litigate elsewhere given that she is a New York resident. Further, at least one of the respondents has a presence and does business in New York, witnesses that the moving Respondents intend to call are located in New York, the Post-Nuptial Agreement was executed in New York, the Post-Nuptial Agreement, the Will, and the Trust all apply New York law, and the Post-Nuptial Agreement and the Trust contain New York choice of law clauses. 077454-001/00087181-1 19 23 of 25
This proceeding should be decided by a court in New York, applying New York law, and so that portion of the Respondents motion to dismiss should be denied. CONCLUSION The Respondents motion to dismiss should be denied in all respects. There is nothing premature about the Petitioner s commencement of this Article 77 proceeding; and it appears that the Respondents have confused the Order to Show Cause through which this proceeding was commenced based on the authority of Section 403(d) of the CPLR with a motion. The Post-Nuptial Agreement that this Court is called upon to construe -- in and of itself and without the made up claims in Andrew Lorig s self-serving and infirm Affidavit -- does not utterly refute the factual allegations of the Petition, and so that aspect of the Respondents motion must also fail. 077454-001/00087181-1 20 24 of 25
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