Opinion
Index No. 650126/2024
08-07-2024
Algeria Long Leap Asset Holdings, LLC, Plaintiff, v. Banque De L'Agriculture et du Development Rural, BANK OF ALGERIA, and ALGERIA MINISTRY OF FINANCE, Defendants.
Law Offices of Saul Roffe, Esq. P.C., Marlboro, N.J. (Saul Roffe of counsel), for plaintiff. Law Office of Omar T. Mohammedi, LLC, New York, NY (Omar T. Mohammedi and Mustapha Ndanusa of counsel), for defendants.
Unpublished Opinion
Law Offices of Saul Roffe, Esq. P.C., Marlboro, N.J. (Saul Roffe of counsel), for plaintiff.
Law Office of Omar T. Mohammedi, LLC, New York, NY (Omar T. Mohammedi and Mustapha Ndanusa of counsel), for defendants.
Gerald Lebovits, J.
This motion-action arises from long-running litigation in the courts of Algeria. On motion sequence 001, plaintiff, Algeria Long Leap Asset Holdings, LLC, moves under CPLR 3213 for summary judgment in lieu of complaint against defendants to domesticate what plaintiff contends to be a judgment entered against defendants in Algeria. Defendants cross-move to dismiss. On motion sequence 002, plaintiff seeks injunctive relief restraining defendants from engaging in various forms of conduct in Algeria. Plaintiff's CPLR 3213 motion is denied; defendant's cross-motion to dismiss is granted. Plaintiff's request for injunctive relief is denied as academic.
On reply, plaintiff argues that defendant errs in treating this motion-action as having been brought under CPLR 3213. (See NYSCEF No. 56 at 2-3.) This action, plaintiff says, is "brought pursuant to CPLR 5303(b) which allows judgment holders to make a motion in lieu of complaint to 'domesticate' or obtain a New York judgment on this basis"; and "CPLR 3213 is not at issue in any way in this action." (Id. at 3.) Plaintiff is incorrect. CPLR 5303 (b) provides that when, as here, "recognition of a foreign country judgment is sought as an original matter, the issue of recognition shall be raised" by filing a "motion for summary judgment in lieu of complaint seeking recognition of the foreign country judgment." The procedural vehicle for moving for summary judgment in lieu of complaint is CPLR 3213.
DISCUSSION
CPLR 3213 provides that "[w]hen an action is based... upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint." Plaintiff contends that it holds, and now seeks to domesticate, "judgments against Defendants issued by the Algerian Supreme Court in the amount of $585,755,007.97 plus interest." (NYSCEF No. 2 at 2; accord id. at 6-7 [same].) To support this contention, plaintiff attaches what it represents to be judgments entered by the Algerian Supreme Court. (See NYSCEF No. 4.)
Several problems exist with this contention. As a threshold matter, the judicial decisions on which plaintiff relies were rendered in Arabic. (See id. at 7-10, 30-45.) Plaintiff attaches what it represents to be translations of those decisions. (See id. at 2-6, 12-29; NYSCEF No. 3 at ¶¶ 3-4 [affirmation of plaintiff's principal].) But plaintiff does not identify the translator or provide "an affidavit by the translator stating his qualifications and that the translation is accurate." (CPLR 2101 [b].) Nor, for that matter, does plaintiff provide the certification or attestation required to authenticate the decisions as foreign official records under CPLR 4542. Plaintiff has thus failed to support its motion with admissible evidence. (See Sylla v Condominium Bd. of Kips Bay Towers Condominium, Inc., 159 A.D.3d 430, 430 [1st Dept 2018] [holding translated affidavit inadmissible for failing to attach the translator's affidavit required by CPLR 2101 [b]]; American Minority Petroleum, Inc. v Vafai, 237 A.D.2d 105, 106 [1st Dept 1997] ["The court properly refused to admit the English translations of Russian documents where defendant failed to authenticate them as required by CPLR 4542."].)
More fundamentally, even if this court were to treat these decisions as admissible evidence, the decisions are not judgments within the meaning of CPLR 3213. As defendants contend-and plaintiff does not seriously dispute-the translations of the decisions reflect that the Algerian Supreme Court did not enter judgment in favor of the plaintiff in the case. Rather, the Court's decisions reversed a lower-court ruling dismissing the plaintiff's claim, and remanded for further proceedings. (See NYSCEF No. 4 at 5, 28.)
The plaintiff in this motion-action states that it is the assignee of the claims in the Algerian litigation. (See NYSCEF No. 2 at 2; NYSCEF No. 3 at ¶ 1.)
Plaintiff's motion papers do not address what has occurred on remand.
Plaintiff contends that this distinction is irrelevant because the amount it claims was "implicitly accepted by the Algerian Supreme Court as it held [the plaintiff's] expert determination was correct." (NYSCEF No. 2 at 3.) Thus, plaintiff asserts, because the decisions state that the plaintiff in the case "is entitled at least the amount stated" in the decisions, "as to the sums awarded, they are final Judgments not subject to further litigation" that may be domesticated here. (NYSCEF No. 56 at 5-6.) This assertion is unpersuasive. Even assuming plaintiff's characterization of the Algerian Supreme Court decisions is accurate-and plaintiff does not support its characterization with citations to particular pages in the record-those decisions still do not purport to award a specific, liquidated amount in damages. At most, on plaintiff's account, the decisions would lay the groundwork for a subsequent damages award. That is quite different for CPLR 3213 purposes from a ruling granting judgment.
Plaintiff asserts that because the judgments "were issued by the Algerian Supreme Court, the highest court in Algeria," they are not and cannot be the subject of appeal"-and that as a corollary, "the Judgments are final because they are not appealable." (NYSCEF No. 56 at 6.) But "unappealable" and "final" are not the same thing. A ruling that vacates or reverses the decision below and remands for further proceedings is not a final judgment, even if no further appeal from that ruling will lie. (See Burke v Crosson, 85 N.Y.2d 10, 15-16 [1995] [discussing the concept of finality].) Plaintiff relies on CPLR 8602's definition of "final judgment" (see NYSCEF No. 56 at 6); but that definition provides that final judgment "means a judgment that is final and not appealable" (CPLR 8602 [c] [emphasis added]).
Plaintiff thus has not established that it is entitled to summary judgment based on the Algerian Supreme Court rulings on which it relies. The motion must therefore be denied. CPLR 3213 provides that the default procedure in this scenario is to convert the motion-action into a plenary action in which "the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise." In this case, conversion into a plenary action would be inappropriate. The basis for the denial of plaintiff's motion is not that a factual dispute exists about the underlying money judgment that precludes granting summary judgment on the current record, but that no money judgment has been awarded. In other words, plaintiff lacks a cause of action in the first place: No judgment, no claim on that judgment.
For this reason, defendants have cross-moved to dismiss the motion-action under CPLR 3211 (a) (1) and (a) (7). (See NYSCEF No. 17 [notice of cross-motion]; NYSCEF No. 52 at 11-13 [mem. of law].) In opposing the cross-motion, plaintiff claims that "the cross-motion is invalid as there is nothing to dismiss"- i.e., that this court (assertedly) "either grants [p]laintiff's motion or it does not," leaving "no complaint to dismiss." (NYSCEF No. 56 at 2.) As discussed above, this claim does not accurately characterize procedure on a motion for summary judgment in lieu of complaint. And plaintiff, although reiterating its argument that a final judgment was rendered in Algeria (see id. at 5-6), provides no argument why the action should be permitted to go forward if this court were to disagree with plaintiff about the existence of a final judgment.
Defendants' cross-motion to dismiss is granted. Given the dismissal of the action, plaintiff's motion for a preliminary injunction against defendants-which, as framed on mot seq 002, would have solely extraterritorial effect-is denied as academic.
Accordingly, it is
ORDERED that plaintiff's CPLR 3213 motion for summary judgment (mot seq 001) in lieu of complaint is denied; and it is further
ORDERED that defendants' cross-motion to dismiss (mot seq 001) is granted, and the motion-action is dismissed, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that plaintiff's motion for a preliminary injunction (mot seq 002) is denied as academic; and it is further
ORDERED that defendants serve a copy of this order with notice of its entry on plaintiff and on the office of the County Clerk (by the means set forth in the court's e-filing protocol, available on the e-filing page of the court's website, https://ww2.nycourts.gov/courts/1jd/supctmanh/E-Filing.shtml), which shall enter judgment accordingly.