| Daguerre, S.A.R.L. v Rabizadeh |
| 2013 NY Slip Op 08587 [112 AD3d 876] |
| December 26, 2013 |
| Appellate Division, Second Department |
| Daguerre, S.A.R.L., Respondent, v AlbertRabizadeh, Appellant. |
—[*1] Rand Rosenzweig Radley & Gordon, LLP, White Plains, N.Y. (Catherine S.Campbell of counsel), for respondent.
In an action to enforce a foreign country money judgment, commenced by motion forsummary judgment in lieu of complaint pursuant to CPLR 3213, the defendant appealsfrom (1) an order of the Supreme Court, Nassau County (Adams, J.), entered February 8,2012, which granted the motion for summary judgment, and (2) a judgment of the samecourt entered March 13, 2012, which, upon the order, is in favor of the plaintiff andagainst him in the principal sum of $70,577.70.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the plaintiff's motion for summaryjudgment in lieu of complaint is denied, the order entered February 8, 2012, is modifiedaccordingly, and the motion and answering papers are deemed to be the complaint andanswer, respectively; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The plaintiff is a private auction house with offices in Paris, France. The plaintiffalleges that on November 23, 2007, the defendant, a New York resident, was the winningbidder at auction for a set of four antique Russian drinking cups. The defendantsubsequently questioned the authenticity of the cups, and did not tender payment forthem. In the spring of 2009, the plaintiff commenced an action against the defendant inthe Superior Court of Paris seeking to recover the sales price for the cups. Service of awrit of summons upon the defendant, in alleged conformity with the Hague Convention,was made on April 6, 2009. The defendant did not appear in the French action, and ajudgment in favor of the plaintiff and against him was issued by the Superior Court of[*2]Paris on July 30, 2009. In October 2011, the plaintiffcommenced this action to enforce the French judgment by filing a summons with noticeof motion for summary judgment in lieu of complaint pursuant to CPLR 3213. TheSupreme Court granted the plaintiff's motion, and entered judgment accordingly.
Under CPLR article 53, a judgment issued by the court of a foreign country isrecognized and enforceable in New York State if it is "final, conclusive and enforceablewhere rendered" (CPLR 5302). "[A] foreign country judgment is considered 'conclusivebetween the parties to the extent that it grants or denies recovery of a sum of money' "(CIBC Mellon Trust Co. v Mora Hotel Corp., 100 NY2d 215, 221 [2003],cert denied 540 US 948 [2003], quoting CPLR 5303; see John Galliano, S.A. v Stallion,Inc., 15 NY3d 75, 80 [2010], cert denied 562 US —, 131 S Ct228 [2010]). However, a foreign country judgment is not conclusive, and thus may notbe recognized, if (1) it was "rendered under a system which does not provide impartialtribunals or procedures compatible with the requirements of due process of law" or (2)"the foreign court did not have personal jurisdiction over the defendant" (CPLR 5304 [a][1], [2]; see CIBC Mellon Trust Co. v Mora Hotel Corp., 100 NY2d at 221-222).A plaintiff seeking enforcement of a foreign country judgment bears the burden ofmaking a prima facie showing that the mandatory grounds for nonrecognition do notexist (see Wimmer Can. v Abele Tractor & Equip. Co., 299 AD2d 47, 49 [2002];see CIBC Mellon Trust Co. v Mora Hotel Corp., 296 AD2d 81, 97 [2002],affd 100 NY2d 215 [2003]; Ackermann v Levine, 788 F2d 830, 842 n 12[1986]; Bridgeway Corp. v Citibank, 45 F Supp 2d 276, 286 [1999], affd201 F3d 134 [2000]; S.C. Chimexim S.A. v Velco Enters. Ltd., 36 F Supp 2d206, 212 [1999]).
Here, the plaintiff failed to make a prima facie showing that the Superior Court ofParis had personal jurisdiction over the defendant. Pursuant to the Hague Convention onthe Service Abroad of Judicial and Extrajudicial Documents in Civil or CommercialMatters, service in a signatory country may be made, inter alia, "by a method prescribedby its internal law for the service of documents in domestic actions upon persons who arewithin its territory" (20 UST 361 [5] [a], TIAS No. 6638 [1969]). In the United States,the methods prescribed for service under the Hague Convention are set forth in rule 4 (e)(1) and (2) of the Federal Rules of Civil Procedure (see Aspinall's Club v Aryeh,86 AD2d 428, 429-430 [1982]; see also Stratigos v Stratigos, 235 AD2d 531,532 [1997]; Wood v Wood, 231 AD2d 713, 714 [1996]). Rule 4 (e) (1)authorizes service to be made by "following state law for serving a summons in an actionbrought in courts of general jurisdiction in the state where the district court is located orwhere service is made," and rule 4 (e) (2) sets forth three specific authorized methods ofservice. In support of its motion for summary judgment in lieu of complaint, the plaintiffsubmitted the affidavit of a process server indicating that service was effected bydelivering the writ of summons to a person of suitable age and discretion at thedefendant's place of business in New York. Delivery of the summons to a person ofsuitable age and discretion at the defendant's actual place of business is a state lawmethod of service authorized by CPLR 308 (2), and thus permissible under rule 4 (e) (1).However, CPLR 308 (2) additionally requires that the summons be mailed to either thedefendant's last known address or actual place of business, and personal jurisdiction isnot acquired pursuant to CPLR 308 (2) unless both the delivery and mailingrequirements have been complied with (see Gray-Joseph v Shuhai Liu, 90 AD3d 988, 989 [2011];Ludmer v Hasan, 33 AD3d594 [2006]). Since the affidavit of the plaintiff's process server did not aver that thewrit of summons was additionally mailed to the defendant, it was insufficient toestablish, prima facie, that service was properly effected pursuant to CPLR 308 (2)(see Steele v Hempstead Pub Taxi, 305 AD2d 401, 402 [2003]), and thereforeconformed to rule 4 (e) (1). Moreover, the plaintiff could not rely on evidence submittedfor the first time in its reply papers to sustain its prima facie burden of showing thatpersonal jurisdiction existed (see L'Aquila Realty, LLC v Jalyng Food Corp., 103 AD3d692 [2013]; Reyes v ArcoWentworth Mgt. Corp., 83 AD3d 47, 55 [2011]). The plaintiff's failure to makea prima facie showing required the denial of its motion regardless of the sufficiency ofthe defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]). Eng, P.J., Dillon, Sgroi and Miller, JJ., concur.