| John Galliano, S.A. v Stallion, Inc. |
| 2009 NY Slip Op 03612 [62 AD3d 415] |
| May 5, 2009 |
| Appellate Division, First Department |
| John Galliano, S.A., Respondent, v Stallion, Inc.,Appellant. |
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Order and judgment (one paper), Supreme Court, New York County (Marylin G. Diamond,J.), entered April 29, 2008, awarding plaintiff, on its motion for summary judgment in lieu ofcomplaint, the aggregate sum of $601,284.52, including interest at 5% prior to October 7, 2004,and 9% thereafter, and order, same court and Justice, entered September 26, 2008, which denieddefendant's motion to renew, unanimously modified, on the law and the facts, renewal granted,the rate of interest after October 7, 2004 decreased to 5%, and otherwise affirmed, without costs.
The motion court should have granted renewal to consider the affidavit of Fran Cannarabecause the allegation that Cannara had accepted service of process voluntarily and told theprocess server she was authorized to accept service was only first raised in plaintiff's replypapers on its summary judgment motion (see e.g. Welch v Scheinfeld, 21 AD3d 802, 808 [2005]), and thecourt's rules did not permit defendant to submit a surreply.
Renewal should also have been granted in the interest of justice (see generally Rancho Santa Fe Assn. vDolan-King, 36 AD3d 460 [2007]) to consider the documents that defendant obtainedfrom the Department of Justice via a freedom of information request. In its opposition toplaintiff's summary judgment motion, defendant submitted printouts from the Web site of theHague Conference on Private International Law. While the court's rejection of the printouts wasnot sua sponte, defendant may very well have been surprised by such rejection, as other courtshave relied on the Hague Web site (see e.g. Casa de Cambio Delgado v Casa de CambioPuebla, S.A. de C.V., 196 Misc 2d 1, 6 [2003]; Saysavanh v Saysavanh, 145 P3d1166, 1170 [Utah 2006]).
Even after considering the materials defendant submitted on renewal, we conclude thatsummary judgment was properly granted to plaintiff. It is true that CPLR 5304 (a) (2) declares aforeign country judgment to be not conclusive if the foreign court never had personal jurisdictionover the defendant. However, CPLR 5305 (a) (3) states that a foreign country judgment shouldnot be refused recognition for lack of personal jurisdiction if "the defendant prior to thecommencement of the proceedings had agreed to submit to the jurisdiction of the foreign courtwith respect to the subject matter involved." Prior to commencement of the French proceedings,[*2]defendant entered into a contract in which it agreed that alldisputes would be submitted to a French court, effectively establishing personal jurisdictionunder CPLR 5305 (a) (3) (Dynamic Cassette Intl. Ltd. v Mike Lopez & Assoc., Inc., 923F Supp 8, 11 [ED NY 1996]).
Defendant received notice of the French action; its service by personal delivery is unlikely togive rise to any objections based on due process (see Burda Media, Inc. v Viertel, 417F3d 292, 303 [2d Cir 2005]).
Contrary to defendant's claim, New York's public policy favoring resolution of disputes onthe merits does not preclude enforcement of a foreign default judgment (see Westland Garden State Plaza, L.P. vEzat, Inc., 25 AD3d 516 [2006]).
Normally, plaintiff would be entitled to interest at the New York rate of 9% from October 7,2004, the date of the French judgment (see e.g. Wells Fargo & Co. v Davis, 105 NY 670[1887]). However, in its papers, plaintiff requested interest at only 5% (the French rate) from thedate of the French judgment until the date of the New York award. Therefore, it waived its rightto a higher interest rate for the period prior to that award (see Goldbard v Empire State Mut.Ins. Co., 156 NYS2d 324, 329 [1956], mod on other grounds 164 NYS2d 294 [AppTerm 1957], mod 5 AD2d 230 [1958]). Concur—Tom, J.P., Andrias, Saxe,Moskowitz and DeGrasse, JJ. [See 19 Misc 3d 1108(A), 2008 NY Slip Op 50605(U).]