Google Groups no longer supports new Usenet posts or subscriptions. Historical content remains viewable.
Dismiss
Attorney General of Canada v. Gorman, 769 N.Y.S.2d 369; 2003 N.Y. Slip Op. 23909; 2003 N.Y. Misc. LEXIS 1609
7 views
Skip to first unread message
Muggle
Dec 31, 2009, 6:11:00 AM12/31/09
to
THE ATTORNEY GENERAL OF CANADA on Behalf of HER MAJESTY THE QUEEN IN
RIGHT OF CANADA, Plaintiff, v. JILL MARIE GORMAN, Defendant.
Index No. 110777/03
CIVIL COURT OF THE CITY OF NEW YORK, QUEENS COUNTY
769 N.Y.S.2d 369; 2003 N.Y. Slip Op. 23909; 2003 N.Y. Misc. LEXIS 1609
December 12, 2003, Decided
NOTICE: [*1] THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO
CHANGE PENDING THE RELEASE OF THE FINAL PUBLISHED VERSION. THIS
OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN
THE PRINTED OFFICIAL REPORTS.
DISPOSITION: Plaintiff’s motion for summary judgment denied
without prejudice, with leave to renew.
[**369] COUNSEL: APPEARANCES OF COUNSEL Larry E. Bray, New York
City, and Seidel & Gianturco, LLP, Kew Gardens (Norman Chan of
counsel), for plaintiff.
Defendant, Jill Marie Gorman [no appearance].
[**370] JUDGES: Hon. Charles J. Markey Judge, Civil Court, Queens
County.
OPINION BY: Charles J. Markey
OPINION: CHARLES J. MARKEY, J.:
New York, desirous of streamlining litigation for the recognition and
enforcement in New York of a money judgment of a foreign country, has
emphasized that its courts’ reviewing role in such cases, as
discussed below, is simply “ministerial.” The issue of first
impression raised by this case is what degree of scrutiny must the New
York court employ in reviewing a motion made on default to enforce a
foreign money judgment. Alternatively put, the issue is whether this
Court’s “ministerial function” entails being only a
rubberstamp where, although made on default, the motion calling for
recognition is made simply on skeletal and conclusory averments,
[*2] especially concerning personal jurisdiction in the foreign
country.
In the present case, plaintiff has moved for summary judgment in lieu
of complaint (CPLR 3213) for recognition in New York of a Canadian
court’s judgment rendered on December 13, 2002 (see generally,
Siegel, New York Practice § 472 [West 3rd ed. 1999]). The papers
state only that “after personal service upon the Defendant,”
the court in Canada awarded plaintiff the sum of $ 15,111.60, plus
costs and interest. A copy of the Canadian judgment is attached. The
exhibit reveals, although not discussed in the affirmation of
plaintiff’s New York attorney, that the judgment by the
Queen’s Bench, Province of Saskatchewan, was taken on default.
Plaintiff does not provide a clue as to the nature and facts
underlying the Canadian action. More important, no copies of
affidavits, exhibits, or explanation is provided as to the alleged
“personal service” in Canada. This Court is then advised
that “Defendant is now out of” Canada and resides in
Sunnyside, Queens County. The affidavits of service to the present
motion properly show several attempts to have served Gorman of the
present motion/action [*3] under CPLR 3213 and that, finally,
“nail and mail” service was effectuated (see, CPLR 308[4]).
In international law, the principle of comity is best exemplified by
the recognition of the courts of one nation to a judgment rendered by
the courts of another country. Such comity promotes international
cooperation and ensures that disputes are tried only once (Mark W.
Janis, An Introduction to International Law 339 [Aspen Publishers 4th
ed. 2003]). In the reigning precedent, Hilton v. Guyot (159 U.S. 113,
40 L. Ed. 95, 16 S. Ct. 139 [1895]), the Supreme Court of the United
States, defined international comity or the “comity of
nations” as “the extent to which the law of one nation . . .
shall be allowed to operate within the dominion of another
nation” (id. at 163). The Court in Hilton expounded:Where there
has been opportunity for a full and fair trial abroad before a court
of competent jurisdiction, conducting the trial upon regular
proceedings, after due citation or voluntary appearance of the
defendant, and under a system of jurisprudence likely to secure an
impartial administration of justice [*4] between the citizens of its
own country and those of other countries, and there is nothing to show
either prejudice in the court, or in the system of laws under which it
was sitting, or fraud in procuring the judgment, or any other special
reason why the comity of this nation should not allow its full effect,
the merits of the case should not, in an action brought in this
country upon the judgment, be tried afresh, as on a new trial or an
appeal, upon the mere assertion of the party that the judgment was
erroneous in law or in fact. (Id. at 202-203).
Although this area of law “seems ripe for international
agreement” (Janis, at 340, [**371] supra), the United States is
not a party to any convention on the recognition and enforcement of
foreign judgments (id.; Note, “Wimmer Canada, Inc. v. Abele
Tractor & Equipment Co., Inc. 299 A.D.2d 47, 750 N.Y.S.2d 331,”
16 N.Y. Intl. L. Rev. 197 [2003]). Although such a treaty is now being
negotiated at the Hague, it is doubtful that the United States will
ratify it (Janis, at 340, supra). Though not a party to any treaty or
convention regarding the recognition and enforcement of a foreign
nation’s money judgment, [*5] the United States is one of the
over 130 countries that presently are parties to the 1958 United
Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, commonly known as the New York Convention (id.,
citing 21 U.S.T. 2517, T.I.A.S. No. 6997, 30 U.N.T.S. 3; Alford,
“Federal Courts, International Tribunals, and the Continuum of
Deference,” 43 Va. J. Intl. L. 675, 700 [2003]; Note, “Forum
Non Conveniens and Personal Jurisdiction: Procedural Limitations on
the Enforcement of Foreign Arbitral Awards under the New York
Convention,” 83 B.U.L. Rev. 899, 899 n.1 [2003]).
International law scholar Mark W. Janis, Professor of Law at the
University of Connecticut School of Law, thus observes that the United
States is bound by international law to compel foreign arbitration and
to recognize and enforce foreign arbitral awards, although no similar
compulsion exists, as a general matter, concerning judicial decisions,
proceedings, and judgments (Janis, at 341, supra).
Helping to fill the void in the law is the Uniform Foreign Money-
Judgments Recognition Act (“the Act”), approved in 1962 by
the National Conference of [*6] Commissioners on Uniform State Laws
and the American Bar Association and presently adopted in some form by
31 states and the District of Columbia and the Virgin Islands (see
discussion in Zitter, Annot., “Construction and Application of
Uniform Foreign Money-Judgments Recognition Act,” 88 ALR 5th 545,
561 [2001]; Note, 16 N.Y. Intl. L. Rev. 197, supra). The Act serves
principally as a “showpiece” since its principal purpose is
to make it more likely that judgments rendered in a state that has
adopted it will be recognized abroad, since the courts of many foreign
countries value reciprocity (Zitter, Annot. at 561, supra).
New York, in 1970, codified the Act in CPLR article 53 (Note, 16 N.Y.
Intl. L. Rev. 197, supra). “In proceeding under article 53, the
judgment creditor does not seek any new relief against the judgment
debtor, but instead merely asks the court to perform its ministerial
function of recognizing the foreign country money judgment and
converting it into a New York judgment” (Lenchyshyn v. Pelko
Elec., Inc., 281 A.D.2d 42, 49, 723 N.Y.S.2d 285 [4th Dept. 2001],
quoted with approval in CIBC Mellon Trust Co. v. Mora Hotel Corp.,
N.V., 100 N.Y.2d 215, 222, 792 N.E.2d 155, 762 N.Y.S.2d 5, [*7]
cert. denied, 157 L. Ed. 2d 279, ___ US ___, 124 S. Ct. 399 [2003]).
One way that a conclusive judgment under the Act may be enforceable in
New York is by filing a motion for summary judgment in lieu of
complaint pursuant to CPLR 3213 (also referred to herein as
“motion/action”).
CPLR 5303 requires the courts to treat the judgment of a foreign
nation as conclusive, unless one of the three mandatory grounds in
CPLR 5304(a) or seven discretionary grounds in CPLR 5304(b) for
refusing recognition is applicable (Siegel, Practice Commentaries,
McKinney’s Cons Laws of NY, Book 7B, CPLR 5303:1). Concerning the
enumerated mandatory grounds, CPLR 5304(a) states that New York will
not recognize the foreign country’s money judgment [**372]
where the originating forum did not provide for impartial forums (see,
e.g., Bridgeway Corp. v. Citibank, 45 F. Supp. 2d 276 [SD NY 1999]),
did not provide procedures that are compatible with due process, or
did not have personal jurisdiction over the defendant. CPLR 5304(b)
[*8] then provides several discretionary grounds for not recognizing
a judgment of a foreign nation. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The discretionary grounds for non-recognition, listed in CPLR 5304
(b), are: the foreign court lacked subject matter jurisdiction; the
defendant did not receive sufficient advance notice to provide a
defense in the foreign action; the foreign judgment was obtained by
fraud; the cause of action on which the foreign judgment is based is
“repugnant” to New York’s public policy; the judgment
conflicts with another final, conclusive judgment; the foreign court
proceeding ran contrary to an agreement calling for any dispute to be
settled or adjudicated by some other means; in the case of
jurisdiction based only on personal service, the foreign country was
“a seriously inconvenient forum” for the trial of the
action.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In Lenchyshyn v. Pelko Electric Inc (281 A.D.2d 42, 723 N.Y.S.2d 285,
supra), containing a scholarly analysis, the plaintiff, as in the case
at bar, sought to enforce a Canadian [*9] judgment in New York. The
court there concluded that jurisdiction of the defendant in New York
was not essential as long as the foreign court had all requisite
jurisdiction and did not violate traditional American concepts of due
process (281 A.D.2d at 46-47; see, Siegel, 2001 Supp Practice
Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5305,
2003 Pocket Part, at 68-69).
CPLR article 53 poses interesting issues concerning the allocation of
the respective burdens of production and proof in an action to
recognize and enforce a foreign money judgment. The United States
Court of Appeals for the Second Circuit, in Ackermann v. Levine (788 F.
2d 830 [1986]), construing CPLR article 53, stated that a plaintiff
has the “prima facie” burden of establishing (1) a final
judgment, (2) subject matter jurisdiction, (3) jurisdiction over the
parties or res, and (4) regular proceedings conducted under an
impartial system of justice (id. at 842 n.12; accord, CIBC Mellon
Trust Co. v. Mora Hotel Corp., N.V., 296 A.D.2d 81, 97-98, 743 N.Y.S.
2d 408 [1st Dept. 2002], aff’d 100 N.Y.2d 530, 791 N.E.2d 957,
761 N.Y.S.2d 592, [*10] cert. denied, 157 L. Ed. 2d 279, 124 S. Ct.
399, supra; Note, 16 N.Y. Intl. L. Rev. 197, supra). A federal
district court, construing New York law, has held that the plaintiff
judgment-creditor has the prima facie burden of demonstrating that no
mandatory basis for refusal exists under CPLR 5304(a), and that the
defendant judgment-debtor opposing enforcement has the burden of
showing a discretionary basis for non-recognition under the seven
categories listed in CPLR 5304(b) (see, Bridgeway Corp., 45 F. Supp.
2d at 286; accord, S.C. Chimexin, S.A. v. Velcro Enters., Ltd., 1999
WL 223513 [SD NY Mar. 17, 1999]).
In Lenchyshyn, the Appellate Division, Fourth Department, a contested
case for recognition of the foreign judgment - - unlike the default in
the case at bar - - the court stated:Defendants have not challenged
their amenability to the jurisdiction of the Ontario court or the
fundamental fairness of Ontario’s system of justice and court
procedures, and thus we have no need to address the strict
requirements for recognition set forth in CPLR 5304(a)(1) or (2). Nor
have defendants raised any issue with respect to Supreme Court’s
discretionary power to refuse recognition of the Ontario money
judgment under any of the conditions [**373] listed in CPLR 5304(b).
(Id. at 46-47; see generally, Kam-Tech Systems, Ltd. v. Yardeni, 340
N.J. Super. 414, 774 A.2d 644 [2001]).
This case involves a motion in New York, taken on default, to
recognize and enforce a Canadian judgment, also taken on default. This
Court’s legal research, however, has not found any case
discussing the degree of scrutiny that a New York court must exercise
in reviewing whether the plaintiff judgment creditor has met its prima
facie burden in enforcing a foreign court’s money judgment, where
the motion/action in New York is taken on default.
This Court is not troubled by the first two mandatory requirements
listed in CPLR 5304(a)(1), because it cannot be seriously contended
that the courts of Canada do not provide for impartial tribunals and
do not have procedures akin to concepts of due process of law. New
York courts have enforced judgments of Canadian courts without
questioning their impartiality [*12] and fairness (see, e.g., Wimmer
Canada, Inc. v. Abele Tractor & Equip. Co., Inc., 299 A.D.2d 47, 750
N.Y.S.2d 331 [3rd Dept. 2002], lv. to appeal denied, 99 N.Y.2d 507,
787 N.E.2d 1164, 757 N.Y.S.2d 818 [2003]). Our courts have recognized
the Canadian judicial system as “a sister common law jurisdiction
with procedures akin to our own” (Clarkson Co., Ltd. v. Shaheen,
544 F.2d 624, 630 [2d Cir. 1976], quoted in Wimmer Canada, 299 A.D.2d
at 49). References to American actions where a plaintiff has sought to
enforce a Canadian judgment may be found in Zitter, Annot., 88 ALR5th
at 549).
This Court is also willing to excuse the lack of any discussion of the
underlying facts leading to the Canadian judgment in the supporting
affirmation to the CPLR 3213 motion/action, although a brief factual
overview - - as a matter of professional advocacy - - would have been
preferable and appropriate.
CPLR 3213 requires that a certified copy of the judgment be attached.
In Shaw v. Krebs, (85 A.D.2d 913, 914, 446 N.Y.S.2d 785 [4th Dept.
1981]), the Court required a certified copy of the judgment, not
simply [*13] a certified copy of the minutes. In the present case,
although the certification was made by a notary public of the Province
of Saskatchewan, not by a court official, this Court will deem that
the certification of the judgment is proper.
This Court is, however, hesitant to grant the instant motion/action
because of the lack of minimum proof on the third mandatory
requirement, posited in CPLR 5304(a)(2), on whether the foreign court
had “personal jurisdiction over the defendant.” In the
present case, the motion papers contain only the conclusory and
hearsay statement by plaintiff’s New York attorney concerning the
“personal service” upon Gorman in Canada, without any
elaboration or supporting proof.
In Lenchyshyn (281 A.D.2d at 46-47), the Fourth Department, as quoted
above, stated that it had no occasion to review “the strict
requirements for recognition” set forth in CPLR 5304(a), because
they were not challenged by the defendant judgment-debtor in that
case. Lenchyshyn, however, as noted, was not a case of a default in
the New York enforcement proceeding on the foreign court’s money
judgment, unlike the circumstances [*14] here.
Several analogous precedents result in this Court’s conclusion
that in a motion/action to recognize and enforce a foreign
court’s money judgment, taken on default, the proponent of the
motion must satisfy the reviewing court of the jurisdictional basis in
the foreign country by something more than a conclusory statement
[**374] that “personal service and jurisdiction” was
obtained. First, in Dominican Sisters of Ontario, Inc. v. Dunn (272
A.D.2d 367, 707 N.Y.S.2d 215 [2nd Dept. 2000], the appellate court
held that plaintiff made a proper prima facie showing that
jurisdiction in the underlying Oregon state court action had been
properly obtained, since “the process server’s affidavit,
which indicated that the defendant was personally served, constituted
prima facie evidence of proper service under Oregon law.” In
Desilets v. Desilets (262 A.D.2d 482, 483, 691 N.Y.S.2d 318 [2nd Dept.
1999]), similarly, the appellate court concluded that the mother, by
her testimony, made a prima facie case of proper service of process in
the originating Florida action. These cases accord with the
proposition that presentation of a process server’s affidavit
constitutes a prima facie case of personal jurisdiction [*15] (see,
Rox Riv 83 Partners v. Ettinger, 276 A.D.2d 782, 783, 715 N.Y.S.2d 424
[2nd Dept. 2000]; Wieck v. Halpern, 255 A.D.2d 438, 680 N.Y.S.2d 599
[2nd Dept. 1998]; Remington Invs., Inc. v. Seiden, 240 A.D.2d 647, 658
N.Y.S.2d 696 [2nd Dept. 1997]).
Third, the Appellate Division, Third Department, in Wimmer Canada,
Inc. v. Abele Tractor & Equip. Co., Inc. (299 A.D.2d at 49), in
affirming the enforcement in New York of a Canadian judgment, stated:
“As the proponent, plaintiff bears the burden of making a prima
facie showing that the mandatory grounds for nonrecognition —
i.e., due process and personal jurisdiction — do not exist.”
This statement suggests that, like this Court’s duty on any
motion taken on default, it has a responsibility to make sure a party
seeking any relief from a court has made out a prima facie case.
Plaintiff, in the present case, by its conclusory assertion of
personal jurisdiction over Gorman in the Canadian proceeding, without
any discussion, does not meet its burden. Plaintiff’s counsel has
failed to state whether Gorman was a citizen or resident of Canada at
the time or was served with the papers in that action, despite the
conclusory [*16] assertion that she had been personally served.
Plaintiff’s counsel fails to provide a description of the method
of service on Gorman in Canada, her residency and citizenship, and her
ties to Canada and the cause of action (see, e.g., Wimmer Canada,
Inc., 299 A.D.2d at 51 [reciting that defendant, a New York
corporation, was served process in the Canadian action at its Albany
County offices]; Aspinall’s Club, Ltd. v. Aryeh, 86 A.D.2d 428,
450 N.Y.S.2d 199 [2nd Dept. 1982] [reciting that defendant was served
pursuant to Rule 4 of the Federal Rules of Civil Procedure and Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Documents (in Civil or Commercial Matters), 20 U.S.T. 361, T.I.A.S.
No. 6638]. No exhibits are attached regarding the service and no
explanation or exhibits are provided on whether the method of service
employed in Canada comported with Canadian law (see, e.g., Dominican
Sisters of Ontario, Inc. v. Dunn, 272 A.D.2d at 367) or other accepted
methods of service.
New York certainly has a self-interest in being a “generous forum
in which to enforce judgments [*17] for money damages rendered by
foreign courts” (CIBC Mellon Trust Co. v. Mora Hotel Corp., 100
N.Y.2d at 221; accord, Siegel, New York Practice § 472, supra;
Note, 16 N.Y. Intl. L. Rev. 197, supra). New York courts would like
the courts of foreign nations to be receptive to our money judgments.
However, even generosity has its limits. If this Court were to grant
the present motion/action, without demanding more, essential facts
regarding the personal service of Gorman in Canada, this Court’s
“ministerial function” [**375] (Lenchyshyn, 281 A.D.2d at
49) would be further reduced into being a mere rubberstamp. Enforcing
the judgment in the present case, without demanding more facts, would
simply encourage a procession of similar, assembly-line, cookie-cutter
motions/actions under CPLR 3213.
Professor David D. Siegel illuminates the issue:If it were just a
matter of recording the judgment — as is permissible for sister-
state judgments under Article 54 of the CPLR — the state might
welcome the procession, collecting a full fee for nothing more than
opening a file on the case. But a foreign judgment gets no [*18]
such smooth entry. The procedure for converting the foreign judgment
into a New York judgment is either a plenary action or at least the
motion/action of CPLR 3213. Either requires an application to the
court and the attention of a judge, a process that costs the state a
good deal more than the fees it collects from the plaintiff. (Siegel,
Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B,
CPLR 5305, 2003 Pocket Part, at 69). To permit the plaintiff to
prevail on the present record, without a modicum of facts that equate
to making a prima facie case, even on a motion where the defendant has
defaulted, would essentially make this Court into a simple recording
agent for the foreign country’s money judgment, contrary to the
intended separation between CPLR Articles 53 and 54.
Especially because the instant motion will determine the extent to
which the Canadian judgment will have conclusive effect in New York,
this Court cannot permit a movant to be cavalier in addressing the
minimum requirements under CPLR 5304(a). As stated by the court in
Clarkson Co., Ltd v. Shaheen (544 F.2d at 633), [*19] in another
context, “strict adherence to the Rules is better practice and
may avoid serious problems in another case.” Every defendant
judgment-debtor has a right to have the vital issue of personal
jurisdiction proven to the court’s satisfaction, even where the
motion is made on default, and proof of personal jurisdiction in the
foreign jurisdiction should be readily apparent. In this case, it is
not.
Plaintiff’s motion for summary judgment pursuant to CPLR 3213,
made on default, accordingly, is denied without prejudice, with leave
to renew upon papers that provide a prima facie case of personal or
proper jurisdiction in Canada, including exhibits and an explanation
regarding Canadian law on the type of service employed.
The foregoing constitutes the decision, order, and opinion of the
Court. Hon. Charles J. Markey
Judge, Civil Court, Queens County
Dated: Jamaica, New York
December 12, 2003
RIGHT OF CANADA, Plaintiff, v. JILL MARIE GORMAN, Defendant.
Index No. 110777/03
CIVIL COURT OF THE CITY OF NEW YORK, QUEENS COUNTY
769 N.Y.S.2d 369; 2003 N.Y. Slip Op. 23909; 2003 N.Y. Misc. LEXIS 1609
December 12, 2003, Decided
NOTICE: [*1] THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO
CHANGE PENDING THE RELEASE OF THE FINAL PUBLISHED VERSION. THIS
OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN
THE PRINTED OFFICIAL REPORTS.
DISPOSITION: Plaintiff’s motion for summary judgment denied
without prejudice, with leave to renew.
[**369] COUNSEL: APPEARANCES OF COUNSEL Larry E. Bray, New York
City, and Seidel & Gianturco, LLP, Kew Gardens (Norman Chan of
counsel), for plaintiff.
Defendant, Jill Marie Gorman [no appearance].
[**370] JUDGES: Hon. Charles J. Markey Judge, Civil Court, Queens
County.
OPINION BY: Charles J. Markey
OPINION: CHARLES J. MARKEY, J.:
New York, desirous of streamlining litigation for the recognition and
enforcement in New York of a money judgment of a foreign country, has
emphasized that its courts’ reviewing role in such cases, as
discussed below, is simply “ministerial.” The issue of first
impression raised by this case is what degree of scrutiny must the New
York court employ in reviewing a motion made on default to enforce a
foreign money judgment. Alternatively put, the issue is whether this
Court’s “ministerial function” entails being only a
rubberstamp where, although made on default, the motion calling for
recognition is made simply on skeletal and conclusory averments,
[*2] especially concerning personal jurisdiction in the foreign
country.
In the present case, plaintiff has moved for summary judgment in lieu
of complaint (CPLR 3213) for recognition in New York of a Canadian
court’s judgment rendered on December 13, 2002 (see generally,
Siegel, New York Practice § 472 [West 3rd ed. 1999]). The papers
state only that “after personal service upon the Defendant,”
the court in Canada awarded plaintiff the sum of $ 15,111.60, plus
costs and interest. A copy of the Canadian judgment is attached. The
exhibit reveals, although not discussed in the affirmation of
plaintiff’s New York attorney, that the judgment by the
Queen’s Bench, Province of Saskatchewan, was taken on default.
Plaintiff does not provide a clue as to the nature and facts
underlying the Canadian action. More important, no copies of
affidavits, exhibits, or explanation is provided as to the alleged
“personal service” in Canada. This Court is then advised
that “Defendant is now out of” Canada and resides in
Sunnyside, Queens County. The affidavits of service to the present
motion properly show several attempts to have served Gorman of the
present motion/action [*3] under CPLR 3213 and that, finally,
“nail and mail” service was effectuated (see, CPLR 308[4]).
In international law, the principle of comity is best exemplified by
the recognition of the courts of one nation to a judgment rendered by
the courts of another country. Such comity promotes international
cooperation and ensures that disputes are tried only once (Mark W.
Janis, An Introduction to International Law 339 [Aspen Publishers 4th
ed. 2003]). In the reigning precedent, Hilton v. Guyot (159 U.S. 113,
40 L. Ed. 95, 16 S. Ct. 139 [1895]), the Supreme Court of the United
States, defined international comity or the “comity of
nations” as “the extent to which the law of one nation . . .
shall be allowed to operate within the dominion of another
nation” (id. at 163). The Court in Hilton expounded:Where there
has been opportunity for a full and fair trial abroad before a court
of competent jurisdiction, conducting the trial upon regular
proceedings, after due citation or voluntary appearance of the
defendant, and under a system of jurisprudence likely to secure an
impartial administration of justice [*4] between the citizens of its
own country and those of other countries, and there is nothing to show
either prejudice in the court, or in the system of laws under which it
was sitting, or fraud in procuring the judgment, or any other special
reason why the comity of this nation should not allow its full effect,
the merits of the case should not, in an action brought in this
country upon the judgment, be tried afresh, as on a new trial or an
appeal, upon the mere assertion of the party that the judgment was
erroneous in law or in fact. (Id. at 202-203).
Although this area of law “seems ripe for international
agreement” (Janis, at 340, [**371] supra), the United States is
not a party to any convention on the recognition and enforcement of
foreign judgments (id.; Note, “Wimmer Canada, Inc. v. Abele
Tractor & Equipment Co., Inc. 299 A.D.2d 47, 750 N.Y.S.2d 331,”
16 N.Y. Intl. L. Rev. 197 [2003]). Although such a treaty is now being
negotiated at the Hague, it is doubtful that the United States will
ratify it (Janis, at 340, supra). Though not a party to any treaty or
convention regarding the recognition and enforcement of a foreign
nation’s money judgment, [*5] the United States is one of the
over 130 countries that presently are parties to the 1958 United
Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, commonly known as the New York Convention (id.,
citing 21 U.S.T. 2517, T.I.A.S. No. 6997, 30 U.N.T.S. 3; Alford,
“Federal Courts, International Tribunals, and the Continuum of
Deference,” 43 Va. J. Intl. L. 675, 700 [2003]; Note, “Forum
Non Conveniens and Personal Jurisdiction: Procedural Limitations on
the Enforcement of Foreign Arbitral Awards under the New York
Convention,” 83 B.U.L. Rev. 899, 899 n.1 [2003]).
International law scholar Mark W. Janis, Professor of Law at the
University of Connecticut School of Law, thus observes that the United
States is bound by international law to compel foreign arbitration and
to recognize and enforce foreign arbitral awards, although no similar
compulsion exists, as a general matter, concerning judicial decisions,
proceedings, and judgments (Janis, at 341, supra).
Helping to fill the void in the law is the Uniform Foreign Money-
Judgments Recognition Act (“the Act”), approved in 1962 by
the National Conference of [*6] Commissioners on Uniform State Laws
and the American Bar Association and presently adopted in some form by
31 states and the District of Columbia and the Virgin Islands (see
discussion in Zitter, Annot., “Construction and Application of
Uniform Foreign Money-Judgments Recognition Act,” 88 ALR 5th 545,
561 [2001]; Note, 16 N.Y. Intl. L. Rev. 197, supra). The Act serves
principally as a “showpiece” since its principal purpose is
to make it more likely that judgments rendered in a state that has
adopted it will be recognized abroad, since the courts of many foreign
countries value reciprocity (Zitter, Annot. at 561, supra).
New York, in 1970, codified the Act in CPLR article 53 (Note, 16 N.Y.
Intl. L. Rev. 197, supra). “In proceeding under article 53, the
judgment creditor does not seek any new relief against the judgment
debtor, but instead merely asks the court to perform its ministerial
function of recognizing the foreign country money judgment and
converting it into a New York judgment” (Lenchyshyn v. Pelko
Elec., Inc., 281 A.D.2d 42, 49, 723 N.Y.S.2d 285 [4th Dept. 2001],
quoted with approval in CIBC Mellon Trust Co. v. Mora Hotel Corp.,
N.V., 100 N.Y.2d 215, 222, 792 N.E.2d 155, 762 N.Y.S.2d 5, [*7]
cert. denied, 157 L. Ed. 2d 279, ___ US ___, 124 S. Ct. 399 [2003]).
One way that a conclusive judgment under the Act may be enforceable in
New York is by filing a motion for summary judgment in lieu of
complaint pursuant to CPLR 3213 (also referred to herein as
“motion/action”).
CPLR 5303 requires the courts to treat the judgment of a foreign
nation as conclusive, unless one of the three mandatory grounds in
CPLR 5304(a) or seven discretionary grounds in CPLR 5304(b) for
refusing recognition is applicable (Siegel, Practice Commentaries,
McKinney’s Cons Laws of NY, Book 7B, CPLR 5303:1). Concerning the
enumerated mandatory grounds, CPLR 5304(a) states that New York will
not recognize the foreign country’s money judgment [**372]
where the originating forum did not provide for impartial forums (see,
e.g., Bridgeway Corp. v. Citibank, 45 F. Supp. 2d 276 [SD NY 1999]),
did not provide procedures that are compatible with due process, or
did not have personal jurisdiction over the defendant. CPLR 5304(b)
[*8] then provides several discretionary grounds for not recognizing
a judgment of a foreign nation. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The discretionary grounds for non-recognition, listed in CPLR 5304
(b), are: the foreign court lacked subject matter jurisdiction; the
defendant did not receive sufficient advance notice to provide a
defense in the foreign action; the foreign judgment was obtained by
fraud; the cause of action on which the foreign judgment is based is
“repugnant” to New York’s public policy; the judgment
conflicts with another final, conclusive judgment; the foreign court
proceeding ran contrary to an agreement calling for any dispute to be
settled or adjudicated by some other means; in the case of
jurisdiction based only on personal service, the foreign country was
“a seriously inconvenient forum” for the trial of the
action.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In Lenchyshyn v. Pelko Electric Inc (281 A.D.2d 42, 723 N.Y.S.2d 285,
supra), containing a scholarly analysis, the plaintiff, as in the case
at bar, sought to enforce a Canadian [*9] judgment in New York. The
court there concluded that jurisdiction of the defendant in New York
was not essential as long as the foreign court had all requisite
jurisdiction and did not violate traditional American concepts of due
process (281 A.D.2d at 46-47; see, Siegel, 2001 Supp Practice
Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5305,
2003 Pocket Part, at 68-69).
CPLR article 53 poses interesting issues concerning the allocation of
the respective burdens of production and proof in an action to
recognize and enforce a foreign money judgment. The United States
Court of Appeals for the Second Circuit, in Ackermann v. Levine (788 F.
2d 830 [1986]), construing CPLR article 53, stated that a plaintiff
has the “prima facie” burden of establishing (1) a final
judgment, (2) subject matter jurisdiction, (3) jurisdiction over the
parties or res, and (4) regular proceedings conducted under an
impartial system of justice (id. at 842 n.12; accord, CIBC Mellon
Trust Co. v. Mora Hotel Corp., N.V., 296 A.D.2d 81, 97-98, 743 N.Y.S.
2d 408 [1st Dept. 2002], aff’d 100 N.Y.2d 530, 791 N.E.2d 957,
761 N.Y.S.2d 592, [*10] cert. denied, 157 L. Ed. 2d 279, 124 S. Ct.
399, supra; Note, 16 N.Y. Intl. L. Rev. 197, supra). A federal
district court, construing New York law, has held that the plaintiff
judgment-creditor has the prima facie burden of demonstrating that no
mandatory basis for refusal exists under CPLR 5304(a), and that the
defendant judgment-debtor opposing enforcement has the burden of
showing a discretionary basis for non-recognition under the seven
categories listed in CPLR 5304(b) (see, Bridgeway Corp., 45 F. Supp.
2d at 286; accord, S.C. Chimexin, S.A. v. Velcro Enters., Ltd., 1999
WL 223513 [SD NY Mar. 17, 1999]).
In Lenchyshyn, the Appellate Division, Fourth Department, a contested
case for recognition of the foreign judgment - - unlike the default in
the case at bar - - the court stated:Defendants have not challenged
their amenability to the jurisdiction of the Ontario court or the
fundamental fairness of Ontario’s system of justice and court
procedures, and thus we have no need to address the strict
requirements for recognition set forth in CPLR 5304(a)(1) or (2). Nor
have defendants raised any issue with respect to Supreme Court’s
discretionary power to refuse recognition of the Ontario money
judgment under any of the conditions [**373] listed in CPLR 5304(b).
(Id. at 46-47; see generally, Kam-Tech Systems, Ltd. v. Yardeni, 340
N.J. Super. 414, 774 A.2d 644 [2001]).
This case involves a motion in New York, taken on default, to
recognize and enforce a Canadian judgment, also taken on default. This
Court’s legal research, however, has not found any case
discussing the degree of scrutiny that a New York court must exercise
in reviewing whether the plaintiff judgment creditor has met its prima
facie burden in enforcing a foreign court’s money judgment, where
the motion/action in New York is taken on default.
This Court is not troubled by the first two mandatory requirements
listed in CPLR 5304(a)(1), because it cannot be seriously contended
that the courts of Canada do not provide for impartial tribunals and
do not have procedures akin to concepts of due process of law. New
York courts have enforced judgments of Canadian courts without
questioning their impartiality [*12] and fairness (see, e.g., Wimmer
Canada, Inc. v. Abele Tractor & Equip. Co., Inc., 299 A.D.2d 47, 750
N.Y.S.2d 331 [3rd Dept. 2002], lv. to appeal denied, 99 N.Y.2d 507,
787 N.E.2d 1164, 757 N.Y.S.2d 818 [2003]). Our courts have recognized
the Canadian judicial system as “a sister common law jurisdiction
with procedures akin to our own” (Clarkson Co., Ltd. v. Shaheen,
544 F.2d 624, 630 [2d Cir. 1976], quoted in Wimmer Canada, 299 A.D.2d
at 49). References to American actions where a plaintiff has sought to
enforce a Canadian judgment may be found in Zitter, Annot., 88 ALR5th
at 549).
This Court is also willing to excuse the lack of any discussion of the
underlying facts leading to the Canadian judgment in the supporting
affirmation to the CPLR 3213 motion/action, although a brief factual
overview - - as a matter of professional advocacy - - would have been
preferable and appropriate.
CPLR 3213 requires that a certified copy of the judgment be attached.
In Shaw v. Krebs, (85 A.D.2d 913, 914, 446 N.Y.S.2d 785 [4th Dept.
1981]), the Court required a certified copy of the judgment, not
simply [*13] a certified copy of the minutes. In the present case,
although the certification was made by a notary public of the Province
of Saskatchewan, not by a court official, this Court will deem that
the certification of the judgment is proper.
This Court is, however, hesitant to grant the instant motion/action
because of the lack of minimum proof on the third mandatory
requirement, posited in CPLR 5304(a)(2), on whether the foreign court
had “personal jurisdiction over the defendant.” In the
present case, the motion papers contain only the conclusory and
hearsay statement by plaintiff’s New York attorney concerning the
“personal service” upon Gorman in Canada, without any
elaboration or supporting proof.
In Lenchyshyn (281 A.D.2d at 46-47), the Fourth Department, as quoted
above, stated that it had no occasion to review “the strict
requirements for recognition” set forth in CPLR 5304(a), because
they were not challenged by the defendant judgment-debtor in that
case. Lenchyshyn, however, as noted, was not a case of a default in
the New York enforcement proceeding on the foreign court’s money
judgment, unlike the circumstances [*14] here.
Several analogous precedents result in this Court’s conclusion
that in a motion/action to recognize and enforce a foreign
court’s money judgment, taken on default, the proponent of the
motion must satisfy the reviewing court of the jurisdictional basis in
the foreign country by something more than a conclusory statement
[**374] that “personal service and jurisdiction” was
obtained. First, in Dominican Sisters of Ontario, Inc. v. Dunn (272
A.D.2d 367, 707 N.Y.S.2d 215 [2nd Dept. 2000], the appellate court
held that plaintiff made a proper prima facie showing that
jurisdiction in the underlying Oregon state court action had been
properly obtained, since “the process server’s affidavit,
which indicated that the defendant was personally served, constituted
prima facie evidence of proper service under Oregon law.” In
Desilets v. Desilets (262 A.D.2d 482, 483, 691 N.Y.S.2d 318 [2nd Dept.
1999]), similarly, the appellate court concluded that the mother, by
her testimony, made a prima facie case of proper service of process in
the originating Florida action. These cases accord with the
proposition that presentation of a process server’s affidavit
constitutes a prima facie case of personal jurisdiction [*15] (see,
Rox Riv 83 Partners v. Ettinger, 276 A.D.2d 782, 783, 715 N.Y.S.2d 424
[2nd Dept. 2000]; Wieck v. Halpern, 255 A.D.2d 438, 680 N.Y.S.2d 599
[2nd Dept. 1998]; Remington Invs., Inc. v. Seiden, 240 A.D.2d 647, 658
N.Y.S.2d 696 [2nd Dept. 1997]).
Third, the Appellate Division, Third Department, in Wimmer Canada,
Inc. v. Abele Tractor & Equip. Co., Inc. (299 A.D.2d at 49), in
affirming the enforcement in New York of a Canadian judgment, stated:
“As the proponent, plaintiff bears the burden of making a prima
facie showing that the mandatory grounds for nonrecognition —
i.e., due process and personal jurisdiction — do not exist.”
This statement suggests that, like this Court’s duty on any
motion taken on default, it has a responsibility to make sure a party
seeking any relief from a court has made out a prima facie case.
Plaintiff, in the present case, by its conclusory assertion of
personal jurisdiction over Gorman in the Canadian proceeding, without
any discussion, does not meet its burden. Plaintiff’s counsel has
failed to state whether Gorman was a citizen or resident of Canada at
the time or was served with the papers in that action, despite the
conclusory [*16] assertion that she had been personally served.
Plaintiff’s counsel fails to provide a description of the method
of service on Gorman in Canada, her residency and citizenship, and her
ties to Canada and the cause of action (see, e.g., Wimmer Canada,
Inc., 299 A.D.2d at 51 [reciting that defendant, a New York
corporation, was served process in the Canadian action at its Albany
County offices]; Aspinall’s Club, Ltd. v. Aryeh, 86 A.D.2d 428,
450 N.Y.S.2d 199 [2nd Dept. 1982] [reciting that defendant was served
pursuant to Rule 4 of the Federal Rules of Civil Procedure and Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Documents (in Civil or Commercial Matters), 20 U.S.T. 361, T.I.A.S.
No. 6638]. No exhibits are attached regarding the service and no
explanation or exhibits are provided on whether the method of service
employed in Canada comported with Canadian law (see, e.g., Dominican
Sisters of Ontario, Inc. v. Dunn, 272 A.D.2d at 367) or other accepted
methods of service.
New York certainly has a self-interest in being a “generous forum
in which to enforce judgments [*17] for money damages rendered by
foreign courts” (CIBC Mellon Trust Co. v. Mora Hotel Corp., 100
N.Y.2d at 221; accord, Siegel, New York Practice § 472, supra;
Note, 16 N.Y. Intl. L. Rev. 197, supra). New York courts would like
the courts of foreign nations to be receptive to our money judgments.
However, even generosity has its limits. If this Court were to grant
the present motion/action, without demanding more, essential facts
regarding the personal service of Gorman in Canada, this Court’s
“ministerial function” [**375] (Lenchyshyn, 281 A.D.2d at
49) would be further reduced into being a mere rubberstamp. Enforcing
the judgment in the present case, without demanding more facts, would
simply encourage a procession of similar, assembly-line, cookie-cutter
motions/actions under CPLR 3213.
Professor David D. Siegel illuminates the issue:If it were just a
matter of recording the judgment — as is permissible for sister-
state judgments under Article 54 of the CPLR — the state might
welcome the procession, collecting a full fee for nothing more than
opening a file on the case. But a foreign judgment gets no [*18]
such smooth entry. The procedure for converting the foreign judgment
into a New York judgment is either a plenary action or at least the
motion/action of CPLR 3213. Either requires an application to the
court and the attention of a judge, a process that costs the state a
good deal more than the fees it collects from the plaintiff. (Siegel,
Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B,
CPLR 5305, 2003 Pocket Part, at 69). To permit the plaintiff to
prevail on the present record, without a modicum of facts that equate
to making a prima facie case, even on a motion where the defendant has
defaulted, would essentially make this Court into a simple recording
agent for the foreign country’s money judgment, contrary to the
intended separation between CPLR Articles 53 and 54.
Especially because the instant motion will determine the extent to
which the Canadian judgment will have conclusive effect in New York,
this Court cannot permit a movant to be cavalier in addressing the
minimum requirements under CPLR 5304(a). As stated by the court in
Clarkson Co., Ltd v. Shaheen (544 F.2d at 633), [*19] in another
context, “strict adherence to the Rules is better practice and
may avoid serious problems in another case.” Every defendant
judgment-debtor has a right to have the vital issue of personal
jurisdiction proven to the court’s satisfaction, even where the
motion is made on default, and proof of personal jurisdiction in the
foreign jurisdiction should be readily apparent. In this case, it is
not.
Plaintiff’s motion for summary judgment pursuant to CPLR 3213,
made on default, accordingly, is denied without prejudice, with leave
to renew upon papers that provide a prima facie case of personal or
proper jurisdiction in Canada, including exhibits and an explanation
regarding Canadian law on the type of service employed.
The foregoing constitutes the decision, order, and opinion of the
Court. Hon. Charles J. Markey
Judge, Civil Court, Queens County
Dated: Jamaica, New York
December 12, 2003
0 new messages