Opinion
Index No. CV-016902-21/BX
01-06-2023
Elhadj A. BARRY, Plaintiff(s) v. ASSOCIATION DES SENEGALAIS D'AMERIQUE, ASA, INC. ; Sadio Yaya Barry; Mohamed Drame; Mamadou Drame; Yaya Barry, Defendant(s)
After trial, based upon the admissible and credible evidence and testimony before the Court, the Decision and Order of the Court is as follows: Judgment for plaintiff as against defendant Association des Senegalais d'Amerique, ASA, Inc. ("ASA"), and judgment for the remaining defendants, dismissing the action as against them.
In this action concerning the sale of land in the Republic of Senegal, plaintiff-buyer alleges that he did not receive valid title to 4 parcels of land for which he paid $11,500.00. Defendants do not dispute plaintiff's payment for the parcels in question, but allege that they did convey valid title to the parcels. In support of this contention, defendants offered at trial a copy of an alleged Senegalese deed dated December 21, 2020 (Defendant's Ex. C). The deed, written in French, bears what appears to be a stamp from the Commune of Bambilor, and is accompanied by what appears to be a map, also in French, of the property at issue, with a different government stamp apparently from Ndiapaly Ndiour Diop, a purported official of the local government development agency of Bambilor.
The Court notes that the parties had written contractual terms concerning the sale of the parcels at issue (Plaintiff's Ex. 1), but the parties’ subsequent business dealings differ from the contract offered in evidence, and from the terms reflected in receipts issued for plaintiff's payments (Plaintiff's Ex. 3). As the parties seemingly agree as to the terms of their actual agreement (4 parcels of land for $11,500.00) though, the Court construes the parties’ agreement as having been modified by their performance, and will not disturb the terms of their agreement as modified.
Although the alleged deed is not written in English and was not accompanied by a certified translation ( CPLR 2101(b) ), the Court admitted the document subject to defendants serving and filing a properly certified copy of the alleged deed pursuant to CPLR 4542, which provides that "[a] foreign official record when admissible for any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position (1) of the attesting person, or (2) of any foreign official whose certificate of genuineness of signature and official position (i) relates to the attestation, or (ii) is in a chain of certificates of genuineness of signature and official position relating to the attestation." For documents from Senegal, at present, this requires a complex and time-consuming process of consular legalization, requiring certifications either by consular officials of the Republic of Senegal in the United States, or by consular officials of the United States in Senegal. CPLR 4542(b) By written order dated October 24, 2022, the Court granted defendants 60 days (i.e., until December 23, 2022) to serve and file a certified copy of the alleged deed.
Documents from many other countries are subject to a simplified process pursuant to the terms of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, but Senegal has only recently adopted the terms of the Hague Convention, effective March 23, 2023. See, World Org. for Cross-Border Co-operation in Civil and Commercial Matters, Status Table: Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents , available at https://www.hcch.net/en/instruments/conventions/status-table/print/?cid=41 (last accessed Dec. 30, 2022)
To date, defendants have not submitted a certified copy of the alleged deed and, as such, the Court excludes the alleged deed from evidence. Although the Court is mindful of the burdens in certifying a Senegalese government document for use in New York courts, the Court notes that defendants had ample time to obtain a properly certified and admissible copy of what appears to be, if authentic, very important evidence. While the Court may excuse strict compliance with the consular legalization requirement pursuant to CPLR 4542(b), the Court may only do so for good cause shown, which has not been done here. Cf., e.g., Estate of Greta Garbo , NYLJ, Jul. 31, 1991; 1991 NYLJ LEXIS 6302, *1 n. 1 (Sur. Ct., New York Co. 1991); and Peters v UBS Trustees (Bahamas) Ltd. , 2018 NY Slip Op 31644(U), *7-8 (Sup. Ct., New York Co. 2018) (discussing good cause standard for excusing consular legalization). Further, defendants have been aware of this litigation for over a year as evidenced by the proof of service in the court file, and had over 6 months from the Court's initial trial scheduling order to marshal their evidence. The Senegalese government also maintains a consulate in New York City which expressly offers consular legalization of Senegalese documents, presumably in accordance with CPLR 4542, so defendants were not faced with long distance travel or correspondence as litigants in other states seeking the same services might be. Although the Court will not speculate whether it would have entertained a motion extending the 60-day post-trial deadline, defendants did not seek an extension or advise the Court of any efforts to comply with the Court's October 24th order, and the interests of justice do not compel the Court to vacate the Court's October 24th order sua sponte and admit the alleged deed without final consular legalization. Additionally, it is not clear to the Court that the document purported to be evidence of a legal transfer of title of the subject property to plaintiff actually does what defendants assert it does. Accordingly, the Court will not consider the alleged deed.
The parties are directed to the Court's April 5, 2022 (Morales, J.) and August 11, 2022 (Morales, J.) scheduling orders
See , Consulate General of the Republic of Senegal in New York, Authentication and Legalization , https://consulsen-newyork.org/tous-les-services/ola/services/authentification-et-legalisation (last accessed Dec. 30, 2022)
Based upon the admissible evidence before the Court, plaintiff established prima facie that he did not receive the benefit of his bargain, and defendants have not brought forth sufficient competent evidence to establish that defendants provided plaintiff lawful title to the parcels at issue. Accordingly, plaintiff is entitled to a judgment, with interest from the contractual date of completion of the project, December 31, 2019. However, plaintiff has established lability as against the corporate defendant only, and has not established individual wrongdoing or legal responsibility by the individually-named defendants, Sadio Yaya Barry, Mohamed Drame, Mamadou Drame, or Yaya Barry, beyond their alleged acts conducted as agents of ASA. Accordingly, these defendants are shielded from liability in their individual capacities, and, as such, the Court dismisses this action as against them.
Accordingly, it is
ORDERED that the clerk enter judgment in favor of plaintiff and against defendant Association des Senegalais d'Amerique, ASA, Inc. in the amount of $11,500.00, together with costs and disbursements in this action and interest from December 31, 2019; and it is further
ORDERED that the clerk enter judgment in favor of defendants Sadio Yaya Barry, Mohamed Drame, Mamadou Drame, and Yaya Barry and dismissing this action as against them.
This constitutes the Decision and Order of the Court.