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2 Misc.3d 693, 769 N.Y.S.2d 369, 2003 N.Y. Slip Op. 23909, 2003 NY Misc LEXIS 1609 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 December 12, 2003 SUBSEQUENT HISTORY: Secondary sources, citations of this case: DISPOSITION:
[*1] Plaintiff’s motion for summary judgment denied without prejudice,
with leave to renew. 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]. JUDGES: Hon. Charles
J. Markey Judge, Civil Court, Queens County. OPINIONBY:
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, 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 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
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 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” (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
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