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Zimmerman v. Mingo

Appellate Division of the Supreme Court of New York, Second Department
Mar 4, 1991
171 A.D.2d 662 (N.Y. App. Div. 1991)

Opinion

March 4, 1991

Appeal from the Supreme Court, Kings County (Vinik, J.).


Ordered that the order is affirmed, with costs.

The Supreme Court properly concluded that the defendant failed to meet his burden of proving that he had changed his New York domicile after enlisting in the United States Army. It is well settled that, "[a]n existing domicile continues until a new one is acquired, and it is incumbent upon the party seeking to prove a change [in] domicile to establish such a change by clear and convincing evidence" (Matter of Pingpank, 134 A.D.2d 263, 265; see, Matter of Newcomb, 192 N.Y. 238; Matter of Gadway, 123 A.D.2d 83; see also, Laufer v Hauge, 140 A.D.2d 671; Matter of Clute v Chu, 106 A.D.2d 841). Although the record establishes that the defendant enlisted in the Army and was stationed in Kentucky prior to the commencement of the action, the "general rule in New York and elsewhere is that military service in no way affects a person's domicile * * * in the absence of acts showing an intent to change it" (Furman v General Dynamics Corp., 377 F. Supp. 37, 45; see, Matter of Brown, 4 A.D.2d 157, 160; Small v Small, 96 Misc.2d 469, 473; Tickel v Oddo, 66 Misc.2d 386, 388; 49 N.Y. Jur 2d, Domicile and Residence, § 30, at 29; cf., Matter of Altimari v Meisser, 22 A.D.2d 933, 934, mod on other grounds 15 N.Y.2d 686; 11 Zett-Edmonds-Schwartz, N Y Civ Prac ¶ 3.10 [2] [f]). Contrary to the defendant's contentions, none of the additional acts upon which he relies is sufficient to establish, by clear and convincing evidence, that a change of domicile occurred subsequent to his enlistment in the Army. Kooper, J.P., Lawrence, Harwood and Miller, JJ., concur.


Summaries of

Zimmerman v. Mingo

Appellate Division of the Supreme Court of New York, Second Department
Mar 4, 1991
171 A.D.2d 662 (N.Y. App. Div. 1991)
Case details for

Zimmerman v. Mingo

Case Details

Full title:MARIE ZIMMERMAN et al., Respondents, v. KERNON S. MINGO, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 4, 1991

Citations

171 A.D.2d 662 (N.Y. App. Div. 1991)
567 N.Y.S.2d 142

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