Opinion
05-25-2017
SUNG HWAN CO., LTD., Plaintiff–Appellant, v. RITE AID CORPORATION, Defendant–Respondent.
Herzfeld & Rubin, P.C., New York (David B. Hamm of counsel), for appellant. Morgan, Lewis & Bockius LLP, New York (Stephen Scotch–Marmo and Elizabeth Buechner of counsel), Thomas A. Schmutz, Washington, D.C., of the bar of the District of Columbia, admitted pro hac vice, of counsel, and Michael F. Healy, Washington, D.C., of the bar of the District of Columbia, admitted pro hac vice, of counsel, for respondent.
Herzfeld & Rubin, P.C., New York (David B. Hamm of counsel), for appellant.
Morgan, Lewis & Bockius LLP, New York (Stephen Scotch–Marmo and Elizabeth Buechner of counsel), Thomas A. Schmutz, Washington, D.C., of the bar of the District of Columbia, admitted pro hac vice, of counsel, and Michael F. Healy, Washington, D.C., of the bar of the District of Columbia, admitted pro hac vice, of counsel, for respondent.
Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered March 2, 2015, after a nonjury trial, dismissing the complaint, unanimously affirmed, without costs.
In this action pursuant to CPLR article 53 to enforce a foreign money judgment, plaintiff had the burden of establishing jurisdiction (Venegas v. Capric Clinic, 147 A.D.3d 457, 47 N.Y.S.3d 13 [1st Dept.2017] ; Derso v. Volkswagen of Am., 159 A.D.2d 937, 938, 552 N.Y.S.2d 1001 [4th Dept.1990] ). On the record before us, we cannot conclude that Supreme Court erred in determining that plaintiff failed to do so. Specifically at issue was whether defendant operated or controlled an ice cream factory owned by a subsidiary that allegedly supplied listeria-tainted ice cream to plaintiff in South Korea. The record does not support a conclusion that Supreme Court erred in determining that defendant did not operate or control the ice cream factory directly or through a subsidiary acting as a "department" of defendant (see Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 [2d Cir.1984] ). Moreover, neither could apparent authority give rise to jurisdiction over defendant here.
Plaintiff relies upon cases from across the country involving defendant. We have reviewed these cases and find them inapposite. We have also considered plaintiff's remaining arguments and find them unavailing.
SWEENY J.P., RENWICK, ANDRIAS, MANZANET–DANIELS, JJ., concur.