Category: CPLR § 5305

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]).