Category: CPLR § 5304

The NYLJ has something special for you.

My week started off with the littlest child breaking my glasses into two.  As you can see, I fixed it with a mix of crazy glue and sewing thread.  Now when I wear them I look like Sloth and it makes my vision all crazy like.  And today, while I was walking home I walked past an electronics store with a Pickachu statute on the outside and I swear, it looked like it was flipping me the bird.  I blame that on my lack of sleep.  What I can't explain is that for second, I was genuinely pissed at Pickachu.1
Photo

And onto the law.  Yesterday's Law Journal had one of those special fancy pants pull out sections: Court of Appeals and Appellate Practice.  One of the sections, indeed, the most important section is, Civil Practice: Substantive Impact of the CPLR.  Sure, there are other sections, but you didn't come here for them.  You can here to see if I would actually fight a statue of a cartoon character and read about the CPLR.

The section covers, among other things CPLR CPLR § 205(a), CPLR § 5511, CPLR § 5304, CPLR § 901(a).

The discussion of CPLR 205(a) revolved around Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511 (Ct. App., 2009), a case I posted way back when.  Next is CPLR 5511.  The author, Thomas F. Gleason, starts with Batavia Turf Farms v. County of Genesee, 91 NY 2d 906 (Ct. App. 1998), a remarkably terse decision.  From there he moves to Adams v Genie Indus., Inc., 14 NY3d 535 (Ct. App. 2010), a case I didn't post.  Adams, Mr. Gleason writes, rejected the "more restrictive premise of Batavia, viz., "a stipulation on one issue (such as damages) would foreclose an appeal on other unrelated issues, because a party who had consented to an order could not claim to be aggrieved by any part of it within the meaning of CPLR 5511."2

 In his discussion of class actions, namely CPLR 901(a), he refers to City of New York v Maul, 14 NY3d 499 (Ct. App. 2010), another case I managed to miss.

There's more. But you have to go read it for yourself.

Norman A. Olch, blogger and appellate guru, provides a several book reviews, including Making Your Case, by Scalia and Garner.  Everyone should read it.  You shouldnt need him to tell you to, but, if it that's what it takes, then fine.

Harry Steinberg has a must read section on how not to completely screw up your appeal.  Part of it involves preserving the issues for appeal.  A decision came out today on just that issue: Arrieta v Shams Waterproofing, Inc., 2010 NY Slip Op 06508 (App. Div., 1st 2010). 

I might add some more later.

 

——————

1.  I'm recycling facebook updates today.

2.  For more cases discussing what it means to be "aggrieved" click HERE.  I think all of them are from the Appellate Division, Second Department.  Mixon v TBV, Inc., 2010 NY Slip Op 05521 (App. Div., 2nd, 2010) is the most recent and probably the most useful.

CPLR § 5305(a)(3); CPLR § 5304(a)(2)

CPLR § 5305 Personal jurisdiction

(a) Bases of jurisdiction. The foreign country judgment shall not be refused recognition for lack of personal jurisdiction if:

3. the
defendant prior to the commencement of the proceedings had agreed to
submit to the jurisdiction of the foreign court with respect to the
subject matter involved

CPLR § 5304 Grounds for non-recognition

(a) No recognition. A foreign country judgment is not conclusive if:

2. the foreign court did not have personal jurisdiction over the defendant.

John Galliano, S.A. v Stallion, Inc., 2009 NY Slip Op 03612 (App. Div., 1st, 2009)

The motion court should have granted renewal to consider the
affidavit of Fran Cannara because the allegation that Cannara had
accepted service of process voluntarily and told the process server she
was authorized to accept service was only first raised in plaintiff's
reply papers on its summary judgment motion (see e.g. Welch v Scheinfeld, 21 AD3d 802, 808 [2005]), and the court's rules did not permit defendant to submit a sur-reply.

Renewal should also have been granted in the interest of justice (see generally Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460
[2007]) to consider the documents that defendant obtained from the
Department of Justice via a Freedom of Information request. In its
opposition to plaintiff's summary judgment motion, defendant submitted
printouts from the web site of the Hague Conference on Private
International Law. While the court's rejection of the printouts was not
sua sponte, defendant may very well have been surprised by such
rejection, as other courts have relied on the Hague web site (see e.g. Casa de Cambio Delgado v Casa de Cambio Puebla, S.A. de C.V., 196 Misc 2d 1, 6 [2003]; Saysavanh v Saysavanh, 145 P3d 1166, 1170 [2006]).

Even after considering the materials defendant submitted on
renewal, we conclude that summary judgment was properly granted to
plaintiff. It is true that CPLR 5304(a)(2) declares a foreign country
judgment to be not conclusive if the foreign court never had personal
jurisdiction over the defendant. However, CPLR 5305(a)(3) states that a
foreign country judgment should not be refused recognition for lack of
personal jurisdiction if "the defendant prior to the commencement of
the proceedings had agreed to submit to the jurisdiction of the foreign
court with respect to the subject matter involved." Prior to
commencement of the French proceedings, [*2]defendant
entered into a contract in which it agreed that all disputes would be
submitted to a French court, effectively establishing personal
jurisdiction under CPLR 5305(a)(3) (Dynamic Cassette Intl. Ltd. v Mike Lopez & Assoc., 923 F Supp 8, 11 [ED NY 1996]).

Defendant received notice of the French action; its service by
personal delivery is unlikely to give rise to any objections based on
due process (see Burda Media, Inc. v Viertel, 417 F3d 292, 303 [2d Cir 2005]).

Contrary to defendant's claim, New York's public policy favoring
resolution of disputes on the merits does not preclude enforcement of a
foreign default judgment (see Westland Garden State Plaza, L.P. v Ezat, 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 the date of the French
judgment until the date of the New York award. Therefore, it waived its
right to 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 [App Term 1957], mod 5 AD2d 230 [1958]).