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299 A.D.2d 47, 750
N.Y.S.2d 331, 2002 N.Y. Slip Op. 07860 Supreme Court,
Appellate Division, Third Department, New York. WIMMER CANADA,
INC., Respondent, v. ABELE TRACTOR & EQUIPMENT COMPANY, INC., Appellant. Oct. 31, 2002. SUSEQUENT HISTORY: Leave to
Appeal Denied by: Wimmer Canada, Inc. v. Abele Tractor & Equipment
Co., Inc., 99 N.Y.2d 507, 787 N.E.2d 1164, 757 N.Y.S.2d 818 (N.Y. Feb. 18,
2003) [**331][*48] Mandel,
Clemente & Associates, Albany (Linda A. Mandel Clemente of counsel), for
appellant.
Law Office of Morris D. Weintraub, New York City (Janice B. Weintraub of
counsel), for respondent. Before: CARDONA, P.J., PETERS and ROSE, JJ. SPAIN, J. Appeal from a judgment
of the Supreme Court (Malone Jr., J.), entered June 22, 2001 in Albany County,
which granted plaintiff’s motion for summary judgment enforcing a foreign
country monetary judgment against defendant.
Plaintiff is a Canadian
corporation with its principal offices located in Quebec and it is engaged in
the business of manufacturing, distributing and servicing heavy construction
equipment, parts and materials. Plaintiff instituted this action to enforce a
judgment of the Superior Court, Province of Quebec, pursuant to CPLR article
53, this state’s codification of the Uniform Foreign Country Money-Judgments
Recognition Act (seeCPLR 5301, 5303. Plaintiff
obtained the Canadian default judgment against defendant, a New York
corporation which maintains offices in Albany County and is engaged in the
retail business of selling and servicing heavy machines and parts. The Canadian
court judgment was for the sum certain of $67,908.50 in Canadian dollars (U.S.
equivalent [**332] of $45,843.91). Plaintiff moved for summary
judgment (see CPLR 5303), which
defendant opposed arguing that recognition was precluded as the Quebec court
lacked personal jurisdiction over it (see CPLR 5304[a][2]), and
that recognition should be denied as well because subject matter jurisdiction
was lacking (see CPLR 5304[b][1]) and
Quebec was an inconvenient forum (see CPLR 5304[b][7]). In a
well-reasoned decision, Supreme Court rejected defendant’s objections to comity
and granted plaintiff’s motion ruling, among other things, that pursuant to, the Quebec
court had personal jurisdiction over defendant, and awarded plaintiff the sum
of $45,843.91 (U.S. dollars) plus interest. On defendant’s appeal, we affirm. As a matter of
international comity, CPLR article 53 accords recognition by this state to a
final foreign country judgment (see CPLR 5303), which grants
or denies the payment of a sum of money (see CPLR 5301 [b]; 5303)
provided the foreign court had personal jurisdiction over the judgment debtor
defendant and the judgment was rendered by a system that provides an impartial
tribunal that utilizes procedures compatible with due process (see CPLR 5304[a]; see
also Hilton v. Guyot, 159 U.S. 113, 163-
164, 16 S.Ct. 139, 143-144, 40 L.Ed. 95; CIBC Mellon
Trust Co. v. Mora Hotel Corp., 296 A.D.2d 81, 87-99, 743 N.Y.S.2d 408, 414-421; Chimexim S.A. v. Velco
Enters., 36 F.Supp. 2d 206, 211-212). 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 (see CPLR 5304 [a]) and that
CPLR article 53 requirements are satisfied CPLR 5302; CIBC Mellon Trust Co. v Mora Hotel
Corp., supra; Ackermann v. Levine, 788 F.2d 830, 842 n.
12, citing Hilton v.
Guyot, supra).
CPLR article 53 also provides additional
grounds upon which recognition of foreign judgments may be denied, including
the foreign court’s lack of subject matter jurisdiction and inconvenience as a
forum (see CPLR 5304[b]).
Initially, defendant does not challenge the partiality or procedural fairness
of the Canadian judicial system (see CPLR 5304[a][1]),
recognized as “a [sibling] common law jurisdiction with procedures akin to
our own” (Clarkson Co. v. Shaheen, 544 F.2d 624, 630 [2nd Cir1976];
see Canadian Imperial Bank of Commerce v.
Saxony Carpet Co.,899 F.Supp. 1248, 1252, affd. 104 F.3d 352; Lenchyshyn v.
Pelko Elec., 281 A.D.2d 42, 46-47, 723 N.Y.S.2d 285; Constandinou v.
Constandinou, 265 A.D.2d 890, 695 N.Y.S.2d 844). Rather,
defendant’s primary challenge is that the Quebec court did not have personal
jurisdiction over it since it did not appear in the Canadian action, maintains
no offices in Canada and did not transact any business there. CPLR 5305(a) sets forth
a nonexclusive list of bases which are deemed adequate for the foreign court’s
exercise of in personam jurisdiction over the judgment debtor. While clearly
none of the bases listed in CPLR 5305(a) are
applicable here, subdivision (b) contains a broad catchall provision which
provides that “[t]he courts of this state may recognize other bases of
jurisdiction” (CPLR 5305[b]). Although
this Court has not previously had occasion to apply this provision, we concur
that as a general rule, it will be “appropriate for New York to recognize
for a foreign judgment, under * * * CPLR 5305 [(b)], any
jurisdictional basis it recognizes in its internal law” (Siegel, Practice
Commentaries, McKinney’s Cons Laws of N.Y., Book 7B, CPLR C5305:1; accord CIBC Mellon Trust Co. v. Mora Hotel
Corp., supra at 420; Porisini v.
Petricca, 90 A.D.2d 949, 950, 456 N.Y.S.2d 888; [**333] Canadian
Imperial Bank of Commerce v Saxony Carpet Co., supra at 1252-1253;
see also Silberman, Enforcement and
Recognition of Foreign Country Judgments in the US, 670 PLI/Lit. 429
[March 2002]; Restatement [Third] of Foreign
Relations Law §§ 481, 482). Viewing the totality
of circumstances, we find that the Quebec court had a valid basis for
exercising personal jurisdiction [*51] see also McGee v. International Life Ins. Co., 355 U.S. 220, 78
S.Ct. 199, 2 L.Ed.2d 223; Kreutter v.
McFadden Oil Corp., 71 N.Y.2d 460, 527 N.Y.S.2d 195, 522 N.E.2d 40;
Camel Invs. v
Transocean Capital [Bermuda], supra). FN1. While the parties debate where the final act necessary to the creation of the contract occurred, the proof presented to the Canadian court did not resolve that issue. The circumstances of each case as a whole must necessarily be
examined in evaluating whether the foreign court had in personam jurisdiction
over the judgment debtor and, accordingly, we find no error in Supreme Court’s
reliance, in part, [**334] upon the analysis of the District Court in Canadian
Imperial Bank of Commerce v Saxony Carpet Co. (supra),
notwithstanding that the judgment debtor in that case had sent agents to Canada
at one point. Further, defendant was served process on December 21, 1999 at its
offices in Albany County and, while it objected to the jurisdiction of the
Canadian court by sending a letter to plaintiff’s counsel in Canada, defendant
failed to avail itself of the opportunity to formally challenge jurisdiction
and to otherwise defend the Canadian suit despite sufficient advance notice (see CPLR 5305 [b] [2]).
Under the circumstances of this case, we conclude that the Quebec court’s
exercise of jurisdiction does not violate principles of due process (see Thorpe v. McCaffrey, 157 A.D.2d 879, 549
N.Y.S.2d 881, 882-883, supra;
see also Burger King Corp. v. Rudzewicz, 471 U.S. 462,
471-476, 105 S.Ct. 2174, 85 L.Ed.2d 528; LaMarca v.
Pak-Mor Mfg. Co., 95 N.Y.2d 210, 713 N.Y.S.2d 304, 735 N.E.2d 883)
and, “[h]aving defaulted, * * * defendant may not now challenge the merits
of plaintiff[’s] claims collaterally” (Porisini v. Petricca, 90 A.D.2d 949, 949, 456 N.Y.S.2d 888, supra;
see Constandinou v. Constandinou, 265 A.D.2d 890, 695
N.Y.S.2d 844, supra). Defendant’s claim that the contract was finalized in New York and,
thus, the Canadian court lacked subject matter jurisdiction relies on the
misconception that plaintiff’s Canadian judgment was premised on a breach of
contract claim. In fact, plaintiff’s action was to collect on accounts
receivable based on defendant’s failure to pay on two lines of credit that
plaintiff opened in Canada at defendant’s request. Thus, Supreme Court did not
err in crediting the unrefuted affidavit submitted by plaintiff’s Canadian
counsel establishing that, under the laws of Canada, the Canadian court had
subject matter jurisdiction over plaintiff’s action (see CPLR 5304[b][1]; Canadian
Imperial Bank of Commerce v. Saxony Carpet Co., 899 F.Supp. 1248,
1253-1254, supra). Finally, we perceive no abuse of discretion in Supreme Court’s conclusion
that defendant failed to demonstrate that the Canadian court was “a
seriously inconvenient forum for the trial of the action” (CPLR 5304[b][7]; see [*52] National Bank & Trust Co. of N. Am.
v. Banco De Vizcaya, 72 N.Y.2d 1005, 1007, 534 N.Y.S.2d 913, 531
N.E.2d 634, cert. denied 489 U.S. 1067, 109 S.Ct. 1343, 103
L.Ed.2d 812; Islamic
Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478-479, 478 N.Y.S.2d 597, 467 N.E.2d
245, cert. denied 469 U.S. 1108, 105 S.Ct. 783, 83
L.Ed.2d 778), a discretionary basis for nonrecognition of a
foreign court judgment which should generally not be invoked “unless New
York in an analogous situation would have dismissed the case under its own
forum non conveniens doctrine” (Siegel, Practice Commentaries, McKinney’s
Cons. Laws of N.Y., Book 7B, CPLR C5304:1, at 551; see CPLR 327). In view of
the substantial nexus to Quebec of plaintiff’s claim related to defendant’s
nonpayment of its obligations on its Canadian line of credit extended by
plaintiff, defendant’s opposition to recognizing the foreign judgment on this
ground was properly rejected (see Markov v. Markov, 274 A.D.2d 870, 871,
711 N.Y.S.2d 847; Camel Invs. v. Transocean Capital
[Bermuda], 195 A.D.2d 533, 534, 600 N.Y.S.2d 471, supra; cf. 3H Enters. v. Bennett, 276 A.D.2d 965,
966-967, 715 N.Y.S.2d 90, lv. denied 96 N.Y.2d 710, 726 N.Y.S.2d 373, 750
N.E.2d 75).
ORDERED that the judgment is affirmed, without
costs. CARDONA, P.J., PETERS, CARPINELLO and ROSE, JJ., concur. |