Opinion
2099/2019
08-28-2019
DESLAURIERS & CO., ATTORNEYS S.A., Plaintiff, v. Gmach Beth JOEL and Julius Behrend, Defendants.
Plaintiff Counsel: Matthew A. Marcucci, Esq., Grossman LLP, 745 Fifth Avenue, 5th Floor, New York, NY 10151 Defense Counsel: Condon Catrina & Mara PLLC, Amy M. Mara, Esq., 55 Old Turnpike Road, Ste 520, Nanuet, New York 10954
Plaintiff Counsel: Matthew A. Marcucci, Esq., Grossman LLP, 745 Fifth Avenue, 5th Floor, New York, NY 10151
Defense Counsel: Condon Catrina & Mara PLLC, Amy M. Mara, Esq., 55 Old Turnpike Road, Ste 520, Nanuet, New York 10954
Judy H. Kim, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers/Numbered
Notices of Motion and Affidavits Annexed
Order to Show Cause and Affidavits Annexed
Answering Affidavits and Notice of Cross-Motion
Replying Affidavits
Sur-Replying Affidavits
Other
In this action, plaintiff Deslauriers & Co., Attorneys S.A. ("Deslauriers") seeks, by way of summary judgment in lieu of complaint, recognition of a foreign country money judgment rendered by a Canadian court in its favor against defendants Gmach Beth Joel ("Gmach") and Julius Behrend ("Behrend") in the amount of CAD $25,324.41.
FACTUAL BACKGROUND
Deslauriers is a Canadian law firm with its principal office in Montreal, Quebec. Plaintiff alleges that in January 2012 it was retained by defendants Gmach, a religious corporation organized under New York law, and Behrend, Gmach's president, to bring a lawsuit against a Montreal lawyer who had allegedly defrauded defendants. Plaintiff maintains that defendants failed to pay them for services rendered.
On or about April 30, 2018, Plaintiff commenced an action in the Court of Quebec, Civil Division (the "Canadian Court") by Originating Application seeking CAD $25,324.41 allegedly owed by defendants (the "Canadian Action"). On May 4, 2018 plaintiff served the Originating Application, Summons, Warning and Summary of the Document on Gita Behrend, the wife of Behrend, at 659 Union Road, Spring Valley, New York 10977 (Marcucci Affirm. at Ex. 3 [Affidavits of Service] ).
Defendants did not appear in the Canadian Action. On or about May 25, 2018, plaintiff filed an application for a default judgment. On September 10, 2018, the Canadian Court granted plaintiff's application and rendered a judgment against defendants for CAD $25,324.41 with interest at the legal rate of five percent per year as well as "the additional indemnity" under Canadian law, and plaintiff's legal fees (the "Canadian Judgment").
Plaintiff now moves, pursuant to CPLR §§ 3213 to convert and domesticate the Canadian Judgment against defendants, jointly and severally, in the amount of CAD $25,324.41.
DISCUSSION
As a preliminary matter, defendants argue that plaintiff's motion must be denied because plaintiff has failed to submit an affidavit by someone with personal knowledge of the underlying facts alleged. The Court disagrees. Plaintiff's affirmation from its attorney, Matthew A. Marcucci, Esq., attaches copies of the Originating Application and Summons, Application to Have Case Set Down for Judgment by Default (with proof of service of originating application on Gmach and Behrend) and the Canadian Judgment as exhibits. This provides sufficient support for its CPLR § 3213 motion (See Sambataro v. Compagnone , 9 Misc 3d 128(A) [App Term, 1st Dept 2005] ["it was not improper for plaintiff to place his supporting proof before the court by way of an attorney's affirmation annexing the foreign judgment, proof of service and other documentary evidence"] ).
New York has "traditionally been a generous forum in which to enforce judgments for money damages rendered by foreign courts, and, in accordance with that tradition, the State adopted the Uniform Foreign Country Money-Judgments Recognition Act" ( John Galliano, S.A. v. Stallion, Inc. , 15 NY3d 75, 79-80 [2010] quoting CIBC Mellon Trust Co. v. Mora Hotel Corp. , 100 NY2d 215, 221 [2003] ). Under CPLR article 53 — New York's enactment of the Uniform Foreign Country Money-Judgments Recognition Act — "a judgment issued by the court of a foreign country is recognized and enforceable in New York State if it is "final, conclusive and enforceable where rendered" ( Daguerre, S.A.R.L. v. Rabizadeh , 112 AD3d 876, 877-78 [2d Dept 2013] citing CPLR § 5302 ). A foreign country judgment is "conclusive between the parties to the extent that it grants or denies recovery of a sum of money" (Id. quoting CIBC Mellon Trust Co. v. Mora Hotel Co., 100 NY2d 215, 221 [2003] ).
There are, however, "ten exceptions to domestication of the foreign judgment, two of which mandate non-recognition" ( Shipcraft v. Arms Corp. of the Philippines, Inc. , 2013 NY Slip Op. 33589[U] [Sup Ct, NY County 2013] citing CIBC Mellon Trust Co. , 100 NY2d 215, 222 ). "A plaintiff seeking enforcement of a foreign country judgment bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition do not exist" ( Daguerre, S.A.R.L. v. Rabizadeh , 112 AD3d 876, 878 [2d Dept 2013] ).
The first of the mandatory grounds for nonrecognition, CPLR § 5304(a)(1), bars recognition of a foreign country judgment if that judgment was "rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law" ( CPLR § 5304[a][1] ). That provision is not implicated here, however, as "New York State and federal courts have recognized the Canadian judicial system as a sister common law jurisdiction with procedures akin to our own" ( Burelle v. Gilbert , 9 Misc 3d 127(A) [App Term, 9th & 10th Jud. Dists. 2005] [internal citations omitted]; see also Wimmer Can., Inc. v. Abele Tractor & Equip. Co., Inc. , 299 AD2d 47, 49 [3d Dept 2002] lv to appeal denied 99 NY2d 507 [2003] ).
The second mandatory grounds for non-recognition, set forth in CPLR § 5304(a)(2), is that the foreign court lacks personal jurisdiction over defendant ( CPLR § 5304[a][2] ). Personal jurisdiction has two fundamental components: (i) service of process, which implicates due process requirements of notice and an opportunity to be heard; and (ii) the power, or reach, of a court over a party, so as to enforce judicial decrees (See Keane v. Kamin, 94 NY2d 263, 265 [1999] ).
Defendants argue that the Canadian Court did not have personal jurisdiction over the defendant because plaintiff failed to establish proper service of the Originating Application, Summons and other initiating papers. "When the challenge to personal jurisdiction in the foreign country is based on improper service of process (or equivalent initiatory papers), the Court's inquiry fuses subsections (a)(2) and (b)(2) of CPLR § 5304 " ( Shipcraft v. Arms Corp. of the Philippines, Inc. , 2013 NY Slip Op. 33589[U] [Sup Ct, NY County 2013] citing John Galliano, S.A., 15 NY3d at 80-81, 82 [2010 ] ).
CPLR § 5304(b)(2) permits the court to deny recognition where "the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend" (CPLR § 5304[b][2] ).
Accordingly, "the proponent of the foreign judgment need not show that service of process was in strict compliance with the relevant foreign laws, but must instead establish "meaningful notice" under the circumstances, reasonably calculated to afford defendant "sufficient time to enable it to defend itself in that action" ( Shipcraft v. Arms Corp. of the Philippines, Inc. , 2013 NY Slip Op. 33589[U] [NY Sup Ct, New York County 2013] quoting John Galliano, S.A., 15 NY3d 75, 80-81, 82 [2010] ).
Defendants argue that service on Behrend did not meet this standard because plaintiff failed to mail an additional copy of the initiating papers to Behrend pursuant to CPLR § 308(2). In this case, no such mailing was required, as service was effected pursuant to Federal Rules of Civil Procedure rule 4(e)(2)(b) . Such service satisfies the Hague Convention and, accordingly, constitutes the required "meaningful notice" (See Aspinall's Club Ltd. v. Aryeh , 86 AD2d 428, 433 [2d Dept 1982] ). An additional mailing would have been required only if plaintiff had elected to serve Behrend under Federal Rules of Civil Procedure rule 4(e)(1) (See Daguerre, S.A.R.L. v. Rabizadeh , 112 AD3d 876, 878 [2d Dept 2013] ).
Federal Rules of Civil Procedure rule 4(e) provides:
Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Defendants next argue that Gmach was not properly served because service upon Gita Behrend did not satisfy Federal Rule of Civil Procedure 4(h) or CPLR § 311.
Federal Rule of Civil Procedure 4(h) provides that
a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served in the manner prescribed by Rule 4(e)(1) for serving an individual; or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and--if the agent is one authorized by statute and the statute so requires--by also mailing a copy of each to the defendant
( Fed. Rules Civ. Pro. rule 4 [h][1][A]-[B] ).
CPLR § 311 similarly provides that personal service upon a domestic corporation shall be made by delivering the summons to "an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service" ( CPLR § 311[a][1] ).
Defendants argue that service on Gmach was insufficient because Gita Behrend is not an officer, managing agent, or general agent of Gmach. Both Behrend and Gita Behrend submit affidavits stating that she plays no such role in the corporation. Plaintiff is unable to prove otherwise, as it submits only an excerpt from a transcript from a deposition of Behrend — conduced in connection with a different matter — in which Behrend states that the only members of Gmach are his family members. Even were this Court to credit this one-page excerpt, without context, nowhere in the transcript does Behrend state that all of his family members are members of Gmach, or that Gita Behrend is such a member.
However, while the Court agrees that plaintiff has not established that Gita Behrend had any such role in Gmach, this is not dispositive. Ultimately, the central consideration here is whether "service was otherwise made in a manner calculated to give the defendant fair notice of the legal proceedings against it" ( John Galliano, S.A. v. Stallion, Inc. , 19 Misc 3d 1108(A) [Sup Ct, NY County 2008], judgment entered sub nom. Galliano v. Stallion, Inc. [Sup Ct, NY County 2008], and affd as mod, 62 AD3d 415 [1st Dept 2009], affd, 15 NY3d 75 [2010], and affd as mod, 62 AD3d 415 [1st Dept 2009], and affd, 15 NY3d 75 [2010] ). In this case, since service was effected upon the wife of the corporation's president at the corporation's place of business and it is undisputed that Gita Behrend accepted service, the Court finds that fair notice was given (Compare John Galliano, S.A. v. Stallion, Inc. , 19 Misc 3d 1108(A) [Sup Ct, NY County 2008], judgment entered sub nom. Galliano v. Stallion, Inc. [Sup Ct, NY County 2008], and affd as mod, 62 AD3d 415 [1st Dept 2009], affd, 15 NY3d 75 [2010], and affd as mod, 62 AD3d 415 [1st Dept 2009], and affd, 15 NY3d 75 [2010] [plaintiff's CPLR § 3213 motion to enforce foreign country judgment granted where plaintiff served initiating papers on defendant's employee who was not authorized to accept service but nevertheless accepted service voluntarily and represented that she was authorized to do so] with Landauer Ltd. v. Joe Monani Fish Co., Inc. , 101 AD3d 653, 654 [1st Dept 2012], revd on other grounds , 22 NY3d 1129 [2014] [motion to enforce foreign country judgment against defendant New York corporation denied where process servers were directed by janitor to unmarked office and left papers with individual at office without asking individual if he was employed by defendant or authorized to receive service on defendant's behalf] ). To hold otherwise would lead to an absurd result in which the president of a corporation was duly notified in his individual capacity but the corporation was not notified. Accordingly, as the procedure used was not "fundamentally unfair" the "propriety of the service under the Hague Convention was an issue" for the Canadian Court ( John Galliano, S.A. v. Stallion, Inc. , 15 NY3d 75, 81-82 [2010] ).
Defendants additionally argue that summary judgment is inappropriate because the plaintiff did not in fact represent Julius Behrend individually. This argument constitutes an impermissible collateral attack on the Canadian Court's determination ( CIBC Mellon Tr. Co. v. Mora Hotel Corp. N.V. , 296 AD2d 81, 91 [1st Dept 2002] [internal citations omitted] affd, 100 NY2d 215 [2003] ["defendants received the basic requisites of notice and the opportunity to be heard. Their decision not to participate in litigating the merits of the proceeding, in an effort to protect their rights to interpose a collateral challenge to enforcement of a final judgment, cannot form the basis of a claimed denial of due process"]; see also Porisini v. Petricca , 90 AD2d 949 [4th Dept 1982] ["Defendant's answering affidavits raised several defenses but Special Term denied the motion solely because it found issues of fact on the merits of plaintiffs' claim and on the jurisdiction of the English court. Having defaulted, however, defendant may not now challenge the merits of plaintiffs' claims collaterally"] ).
Similarly, defendants take issue with the propriety of the Canadian Action on the grounds that the initiating papers served on defendants gave them thirty days to answer, yet plaintiff moved for a default judgment on May 25, 2018, less than thirty days after defendants were served on May 4, 2018. The question of whether the timing of plaintiff's motion for a default judgment is grounds for vacatur of that judgment is also matter for the Canadian Court (See Citadel Mgt. Inc. v. Hertzog , 182 Misc 2d 902, 904-05 [Sup Ct 1999] [defendant's claim that default judgment was entered prematurely is insufficient grounds for court to exercise its discretionary authority to not recognize judgment where defendant made no attempt to vacate judgment in foreign court on that basis] ). The Court also notes, however, that the default judgment was in fact entered on September 10, 2018, well past the thirty-day threshold.
CONCLUSION
In light of the foregoing, it is
ORDERED that the plaintiff's motion for summary judgment in lieu of a complaint is GRANTED and the judgment, procured by plaintiffs against defendants from the Court of Quebec, Civil Division in connection with the Canadian Action on September 10, 2018 in the amount of CAD $25,324.41 is hereby converted to a judgment of this Court; and it is further
ORDERED that plaintiff is directed to serve a copy of this decision and order with notice of entry on defendants by certified mail return receipt requested.
This constitutes the Decision and Order of the Court.