Opinion
No. 600352/15.
06-02-2015
BAKER & McKENZIE ZURICH, Plaintiff(s), v. Anna FRISONE, Vincent Savarese and Rosalie Frisone, Defendant(s).
Kenneth L. Small, Esq., New York, for Plaintiff. Terence Christian Scheurer, PC, for Defendant.
Kenneth L. Small, Esq., New York, for Plaintiff.
Terence Christian Scheurer, PC, for Defendant.
Opinion
JEFFREY S. BROWN, J.
The following papers were read on this motion:
| Papers | Numbered |
|---|---|
| Notice of Motion, Affidavits (Affirmations), Exhibits Annexed | 1 |
| Answering Affidavit | 2 |
| Reply Affidavit | 3 |
| Memorandum of Law | 4 |
This motion by the plaintiff Baker & McKenzie Zurich for an order pursuant to CPLR 3213 and 5304 granting it summary judgment in lieu of a complaint against the defendants and directing that judgments be entered against them in United States dollars in the amounts awarded it by the District Court of Zurich calculated at the exchange rate on the date said judgments are entered and an award of attorney's fees and statutory costs and disbursements is determined as provided herein.
In this action, the plaintiff law firm seeks to convert and domesticate two foreign judgments awarded it against the defendants by the District Court of Zurich in Switzerland to judgments of this court pursuant to the Uniform Foreign Money Judgments Recognition Act. More specifically, it seeks to convert a judgment entered by the District Court of Zurich, 10th Division, Switzerland, on June 6, 2013 in its favor against Rosalie Frisone in the amount of CHF 4,305 .40, plus interest thereon and costs and fees, and a judgment entered by the same court on June 18, 2013, in its favor against Anna Frisone and Vincent Savarese, jointly and severally, in the amount of CHF 32,966.55, plus interest thereon and costs and fees.
CHF is the currency abbreviation for the currency of Switzerland, the Swiss franc.
Attorney Michael J. Michaels attests on behalf of the plaintiff law firm that the defendants Rosalie Frisone, her daughter Anna Frisone and Anna's husband Vincent Savarese retained their firm in July 2009 to represent them before the United States Internal Revenue Service with respect to United States tax regularization for the years 2003–2008 and 2002, if required, regarding cash assets held in a Swiss bank in Lugano, Switzerland, which the defendants had failed to report to the Internal Revenue Service for a number of years. Their Retainer Agreements provided that all invoices would be paid within 30 days and that in the event of a dispute, jurisdiction would lie in Switzerland and Swiss law would apply. Attorney Michaels attests that the law firm provided the defendants with the agreed upon services including the retention of expert accountants, forensic services and the preparation of amended Federal and New York State tax returns; that it invoiced the defendants for their legal fees as well as out-of-pocket expenses; and, that its invoices were not paid. On January 11, 2011, the defendants discontinued its services and retained new counsel. Michaels attests that attempts to procure payment of the firm's invoices proved futile.
Michaels attests that in accordance with Swiss law which protects the identity of lawyers' clients, it sought a Waiver of Confidentiality from the Supreme Court of the Canton of Zurich with respect to Rosalie Frisone in July, 2011. Although she opposed that application, her objections went to the validity of the claim and jurisdiction, not the need for a waiver of confidentiality. Therefore, by order dated February 2, 2012, the Zurich Court granted the plaintiff law firm's application and issued a Waiver of Attorney Confidentiality authorizing it “to disclose professional secrets concerning [Rosalie Frisone] to the appropriate authorities insofar as this is necessary to enforce [its] fee claim.” In addition to imposing costs on Rosalie Frisone, that order specifically noted that “parties to proceedings which have registered their office or domicile abroad must indicate an address for service or a representative in Switzerland. If they fail to satisfy this requirement, the administrative body may substitute service by way of official publications or may choose to not consider the submission.” The court noted that “[a]lthough [Rosalie Frisone] did submit an answer ... she failed to designate an address for service in Switzerland.” It therefore held that “[a]s warned, notice of the decision is to be given [her] via publication in the Official Journal of the Canton of Zurich.”
The plaintiff law firm also sought a Waiver of Confidentiality regarding Anna Frisone and Vincent Savarese in July 2011. The order of the Court of Appeals of the Canton of Zurich dated February 2, 2012 indicates that “[a]ccording to the Records of the International Legal Aid System of the Court of Appeals of the Canton of Zurich, the first attempt at notification failed because the respondents had moved away. The second attempt at delivery by the Swiss Consulate General to the new address was also unsuccessful and the notification was returned with a note saying Return to sender, Unclaimed, Unable to forward.' “ The Court concluded that “[i]n this situation, attempts to obtain a statement from the respondents must be abandoned and a decision must be reached on the basis of the documents.” Accordingly, via that order, the plaintiff law firm also procured a Waiver of Attorney Confidentiality authorizing it “to disclose [its] duty of professional secrecy with respect to [Anna Frisone and Vincent Savarese] to the relevant authorities insofar as this is necessary to enforce [its] claim for payment.” The costs were charged to Anna Frisone and Vincent Savarese, equally.
The plaintiff law firm has submitted evidence that demonstrates that Anna Frisone was served with a copy of the February 2, 2012 order via e-mail on February 22, 2012. In that e-mail, the plaintiff law firm cautioned that pursuant to their retainer agreements, its claim would be brought in the courts of Zurich and that the United States courts recognize such agreed upon venue and choice of law, which meant that it would be able to enforce its award in the United States. While that e-mail was addressed to Mrs. Frisone and Mr. Savarese, only Anna Frisone replied via e-mail dated March 8, 2012, stating that her attorney was out-of-town until early April and that “we will review and respond” by April 10, 2012. Michaels attests that no further response was ever provided but opines that “it is clear that the defendants were well aware of their ongoing disputes with B & M–Zurich regarding the outstanding invoices and that they were on notice that B & M–Zurich intended to bring its claim against them, imminently, in the courts of Zurich, Switzerland based upon their prior consent to that jurisdiction (emphasis added).”
The plaintiff law firm commenced two actions in Switzerland in July 2012, one against Rosalie Frisone and another against Anna Frisone and Vincent Savarese, to recover its out-of-pocket expenses to third-parties.
By order dated July 27, 2012, the Zurich District Court, 10th District, ordered Rosalie Frisone to elect a domicile for service in Switzerland within 20 days after service of that order. That order warned her that if she failed to comply with that directive, further service of process upon her would be by publication in the Official Cantonal Gazette or in the Swiss Official Gazette of Commerce and that service would be similarly directed in the event that service at the designated address was not possible. The Zurich District Court forwarded a copy of that decision along with a “summary of documents to be served” describing the nature and purpose of the proceedings and the amount of the law firm's claim with an English translation to the Central Authority of the Canton of Zurich, the Appellate Court of the Canton of Zurich. By letter dated August 8, 2012, the Appellate Court of the Canton of Zurich forwarded those documents to the Consulate General of Switzerland in New York requesting that they be served upon Rosalie Frisone at 58 Hickory Road, New Hyde Park, N.Y. 11040. The Consulate General sent those documents by certified mail to Rosalie Frisone who signed for them on or before October 11, 2012. The Consulate General sent the certified receipt to the Zurich Appellate Court on October 11, 2012, which forwarded it to the Zurich District Court.
By order dated November 20, 2012, the Zurich District Court deemed that its July 27, 2012 order had been served upon Rosalie Frisone through judicial assistance, apparently in person on October 11, 2012, at the latest. In view of her failure to elect a domicile for service in Switzerland within the required time, the Zurich District Court ordered that further service on her be through publication in the Official Cantonal Gazette. It directed Rosalie Frisone to submit her answer to the statement of claim within 20 days from the date of publication of that order which was published on November 23, 2012. By order dated January 11, 2013, the court set a final deadline for Rosalie Frisone to submit her answer warning that should she fail to answer, the Court would enter judgment against her without further proceedings. That decision was published on January 18, 2013. On June 6, 2013, judgment was rendered against Rosalie Frisone by the Zurich District Court and entry of the judgment was published on June 21, 2013.
By court order dated September 21, 2012, Anna Frisone and Vincent Savarese were also ordered to report a service address in Switzerland within 20 days of service of that order and were warned that if they failed to do so, service by the court could occur in the future by publication in the Official Cantonal Gazette or in the Swiss Official Gazette of Commerce and that service would be similarly directed in the event that service at the designated address was not possible. On September 21, 2012, the Zurich District Court forwarded that order along with an English translation together with a “summary of the documents to be served” describing the amount of the law firm's claim and the nature and purpose of the proceeding to the Central Authority of the Canton of Zurich, the Appellate Court of the Canton of Zurich. By letter dated September 21, 2012, the Appellate Court of the Canton of Zurich forwarded those documents to the Consulate General of Switzerland in New York along with a request that they be served upon Anna Frisone at 58 Hickory Road in New Hyde Park, N.Y. 11040 and on Vincent Savarese at 29 Tenafly Drive, New Hyde Park, N.Y. 11040. The Consulate General of Switzerland sent those documents to Anna Frisone by certified mail on October 4, 2012 but the envelope was returned to the Consulate General marked “return to Sender, Attempted–Unknown, Unable to Forward.” The Zurich Appellate Court and the Zurich District Court were so notified. The Consulate General sent the judicial documents via certified mail to Vincent Savarese on October 5, 2012, which were signed for by “M. Savarese” on October 10, 1012. The Consulate General sent the signed reciept back to the Zurich Appellate Court on November 8, 2012, which forwarded it to the Zurich District Court.
By Zurich District Court order dated November 20, 2012, the court noted that service on Anna Frisone was not possible and that although “reasonable efforts were carried out in order to determine her whereabouts,” they were unknown. Service upon her was therefore directed to be made via publication in the Official Cantonal Gazette. In addition, the court deemed that its order of September 21, 2012 had been served on Vincent Savarese on October 10, 2012 through judicial assistance but he had still not provided an address for service. It accordingly directed that service on Vincent Savarese also be effected by publication in the Official Cantonal Gazette. It directed that Anna Frisone and Vincent Savarese submit their answers within 20 days of publication of that order. That order was published on November 30, 2012. That order noted that both defendants were still at liberty to specify a service address in Switzerland.
By order dated January 11, 2013, the court set a final deadline for Anna Frisone and Vincent Savarese's submission of their answers warning that if they failed to answer, the Court would enter judgment against them without further proceedings. That order was published on January 18, 2013. On June 18, 2013, the Zurich District Court rendered judgment against Anna Frisone and Vincent Savarese. Entry of those judgments was published on June 18, 2013.
In support of their application, the plaintiff attorneys have submitted the affidavit of Prof. Dr. Romy, who describes in detail the judicial system in Switzerland and due process requirements under Swiss Law. In addition, based upon her review of the court files, Dr. Romy opines regarding the existence of personal jurisdiction over the Frisones and Savarese in the Swiss courts as well as the validity of the judgments against them in Switzerland and in the United States. More specifically, Dr. Romy opines as follows:
She explains that civil litigation in Switzerland is governed by the Swiss Federal Code of Civil Procedure. In international matters, jurisdiction and some procedural issues are governed by the Federal Act of Private International Law (PILA) and by the relevant international treaties. She notes that under Swiss law, where, like here, parties are domiciled in both Switzerland and the Unites States, they are free to agree to delegate a court for the purpose of deciding a dispute which may arise, and unless their agreement expressly provides otherwise, that court's jurisdiction is exclusive. She recognizes that “[t]he right to be heard can only be exercised if the defendant has knowledge of the action filed against him or her. For this reason, service of process is an essential requirement of any judicial proceeding in Switzerland.” In fact, she states that neither domestic judgments nor foreign judgments may be enforced if the service of the summons was flawed.
Dr. Romy further explains that in Switzerland, service is an official act and a judicial function for the courts or authorities to perform, not the parties. The Federal Code of Civil Procedure requires that the court serve on the persons concerned the summonses, orders and decisions, and submissions of the opposing parties. If a party is represented, service is made upon the representative. The Code of Civil Practice sets forth in detail how service must be accomplished. That Code also provides that the court may order parties with domiciles abroad to elect a domicile for service in Switzerland, for instance at the domicile of the party's representative or counsel. The courts customarily warn parties that their failure to elect a domicile for service in Switzerland might result in service being made via publication in the Official Cantonal Gazette or the Swiss Official Gazette of Commerce. In fact, the Code “permits service by publication when formal service is impossible, for instance where the defendant's address is not known and cannot be discovered despite reasonable efforts, or if a party with domicile abroad doesn't comply with the court's order to elect a domicile for service in Switzerland.” Service by publication however remains the exception and is restricted to public gazettes.
Dr. Romy explains that the requirements for service in international matters between the United States and Switzerland are set out in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters of 1965 (the Hague Convention). The Hague Convention applies in all cases where there is occasion to transmit a judicial or extrajudicial document for service abroad but it does not apply “where the address of the person to be served with the document is not known.” For the Hague Convention to be rendered inapplicable, the authority must have carried out “all searches that could reasonably be expected under the circumstances.” If the Hague Convention does not apply, Swiss law applies to international service. Under Article 2 of the Hague Convention, each Contracting State must designate a Central Authority to receive requests for service coming from other Contracting States. Under Article 3 of the Hague Convention, the authority or judicial officer of the State in which the documents originate must forward his request to the Central Authority in the State addressed. The Central Authority examines the request for service to ascertain whether it complies with the Hague Convention, and if it does not, the requesting party must be promptly notified. Assuming the request complies with the Hague Convention, the Central Authority of the State addressed must serve the document or arrange to have it served by an appropriate agency either
by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.
Subject to [the existence of a “particular method”], the document may always be served by delivery to an addressee who accepts it voluntarily.
If the document is to be served [by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory,] the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.
Article 8 of the Hague Convention provides:
Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents. Any State may declare that it is opposed to such service within its territory, unless the document is to be served upon a national of the State in which the documents originate.
Article 9 of the Hague Convention provides:
Each contracting State shall be free, in addition, to use consular channels to forward documents, for the purpose of service, to those authorities of another Contracting State which are designated by the latter for this purpose.
Each Contracting State may, if exceptional circumstances so require, use diplomatic channels for same purpose.
The Hague Convention affords some protection to defendants who have not appeared and have not been served abroad under that treaty. Judgment may not be entered if the conditions set forth in Article 15 have not been met.
“[A]rticle 15 of the Hague Convention require[s] the [foreign court] to consider whether service on [the defendant] was properly made or whether the document was actually delivered to the defendant or to his residence by another method provided for by' the treaty (for example, service voluntarily' accepted as contemplated by the second paragraph of article 5)” (John Galliano, S.A. v. Stallion, Inc., 15 NY3d 75, 82 [2010], cert. denied 562 U.S. 893 [2010] quoting Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 UST 361, TIAS No. 6638 [1969] ) ... “Moreover, in whatever form service takes, article 15 further requires that it be established'—again, before judgment may be entered in a foreign defendant's absence—that the service abroad was made in sufficient time to enable the defendant to defend itself in the proceeding (notably, language that is identical to that used by our Legislature in CPLR 5304[b] [2] )” (John Galliano, S.A. v. Stallion, Inc., supra at 82, quoting Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 UST 361, TIAS No. 6638 [1969] ).
In addition, under Article 16, if a judgment has been entered against a defendant who has not appeared, if the deadline to appeal has expired through no fault of his own and the defendant did not have knowledge of the judgment in time to appeal, the judge may grant him a new deadline in which to appeal. These rights, however, must be pursued in the State in which the proceedings took place. If service is found to be defective, the judgment will not be enforced in Switzerland.
Dr. Romy opines that “[t]he Zurich District Court strictly adhered to the rules of service set forth in the [Code] as well as the Hague ... Convention.” That Court's orders of July 27, 2012 and September 21, 2012 were served in accordance with the requirements of the Hague Convention. She further opines that the Court's subsequent orders were properly served via publication in the Official Gazette of the Canton of Zurich. She opines that the defendants were granted sufficient time in which to submit their answer had they wish to defend themselves. Therefore, the judgments against them are valid and were properly entered by the Court. She further opines that the judgments were properly served upon the defendants by way of publication in the Official Gazette of the Canton of Zurich, too. Therefore, all of the judgments against all of the defendants are enforceable in Switzerland.
“Pursuant to CPLR 3213, a party may commence an action by motion for summary judgment in lieu of complaint when the action is based upon an instrument for the payment of money only or upon any judgment' “ (Lawrence v. Kennedy, 95 AD3d 955, 957 [2d Dept 2012], quoting CPLR 3213 ). “[A] document comes within CPLR 3213 if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms” (Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444 [1996] [internal quotation marks omitted] ). “[I]n proceeding under article 53, the judgment creditor does not seek any new relief against the judgment debtor, but instead merely asks the court to perform its ministerial function of recognizing the foreign country money judgment and converting it into a New York judgment' “ (CIBC Mellon Trust Co. v. Mora Hotel Corp., 100 N.Y.2d 215, 222, [2003], cert. denied 540 U.S. 948 [2003], quoting Lenchyshyn v. Pelko Elec., 281 A.D.2d 42, 49 [4th Dept.2001] ). Therefore, “a foreign judgment [that meets the requirements of CPLR 5302 ] is enforceable by ... a motion for summary judgment in lieu of complaint.” (CPLR 5303 ).
“New York has traditionally been a generous forum in which to enforce judgments for money damages rendered by foreign courts” (CIBC Mellon Trust Co, 100 N.Y.2d at 221 ). “Historically, New York courts have accorded recognition to the judgments rendered in a foreign country under the doctrine of comity ... [a]bsent some showing of fraud in the procurement of the foreign country judgment or that recognition of the judgment would do violence to some strong public policy of this State” (Sung Hwan Co., Ltd. v. Rite Aid Corp., 7 NY3d 78, 82 [2006] [internal quotation marks omitted] ). “In accordance with this tradition, New York adopted the Uniform Foreign Country Money Judgments Recognition Act as CPLR article 53 which was intended to codify and clarify existing case law applicable to the recognition of foreign country money judgments based on principles of international comity, and, more importantly, to promote the efficient enforcement of New York judgments abroad by assuring foreign jurisdictions that their judgments would receive streamlined enforcement here' “ (Abu Dhabi Commercial Bank PJSC v. Saad Trading, Contracting and Financial Services Co., 117 AD3d 609, 610 [1st Dept 2014], quoting CIBC Mellon Trust Co., 100 N.Y.2d at 221, and citing John Galliano, S.A., 15 NY3d at 79 ). “[T]he inquiry turns on whether exercise of jurisdiction by the foreign court comports with New York's concept of personal jurisdiction, and if so, whether that foreign jurisdiction shares our notions of procedure and due process of law. If the above criteria are met, and enforcement of the foreign judgment is not otherwise repugnant to our notion of fairness, the foreign judgment should be enforced in New York under well-settled comity principles without microscopic analysis of the underlying proceeding” (Sung Hwan Co., Ltd., 7 NY3d at 83 ).
“Under CPLR article 53, a judgment issued by the court of a foreign country is recognized and enforceable in New York State if it is final, conclusive and enforceable when rendered' “ (Daguerre, S.A.R.L. v. Rabizadeh, 112 AD3d 876 [2d Dept 2013], quoting CPLR 5302 ). “[A] foreign country judgment is considered conclusive between the parties to the extent that it grants or denies recovery of a sum of money' “ (CIBC Mellon Trust Co., 100 N.Y.2d at 221, quoting CPLR 5303 ; see Daguerre, S.A.R.L., 112 AD3d at 877 ), “unless a ground for nonrecognition under CPLR 5304 is applicable” (John Galliano, S.A., 15 NY3d at 80 ). “[A] foreign country judgment is not conclusive, and thus may not be recognized, if (1) it was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law' or (2) the foreign court did not have personal jurisdiction over the defendant' “ (Daguerre, S.A.R .L., 112 AD3d at 877–878, quoting CPLR 5304[a][1], [2] ; see CIBC Mellon Trust Co., 100 N.Y.2d at 221–222 ). “Grounds for nonrecognition include a lack of personal jurisdiction over the defendant by the foreign court and a defendant's failure to receive notice of the proceedings in sufficient time to enable him to defend' “ (John Galliano, S.A., 15 NY3d at 80 citing CPLR 5304[a][2] and quoting CPLR 5304[b][2] ).). “A plaintiff seeking enforcement of a foreign country judgment bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition do not exist” (Daguerre, S.A.R.L., 112 AD3d at 878 ; citing Wimmer Can. v. Abele Tractor & Equip. Co., 299 A.D.2d 47, 49 [3rd Dept 2002], lv. denied 99N.Y.2d507 [2003]; CIBC Mellon Trust Co. v. Mora Hotel Corp., 296 A.D.2d 81, 97 [1st Dept 2002], affd 100 N.Y.2d 215 [2003] ; Ackermann v. Levine, 788 F.2d 830, 842 n 12 [2d Cir1986] ; Bridgeway Corp. v. Citibank, 45 F Supp 2d 276, 286 [SD N.Y.1999], affd 201 F3d 134 [2d Cir2000] ; S.C. Chimexim S.A. v. Velco Enters. Ltd., 36 F Supp 2d 206, 212 [SD N.Y.1999] ; see also, Gemstar Canada, Inc. v. George A. Fuller Co., Inc., 127 AD3d 689 [2d Dept 2015] ). “[T]he defendant opposing enforcement [of a foreign judgment] bears the burden of proving that a discretionary basis for non-recognition pursuant to CPLR 5304(b) applies” (Bridgeway Corp. v. Citibank, 45 F Supp 2d at 286, citing S.C. Chimexim, S.A. v. Velco Enters. Ltd., 1999 WL 223513, at 6 [SD N.Y.1999]; see also, Byblos Bank Europe, S.A. v. Sekerbank Turk Anonym Syrketi, 40 AD3d 497, 499 [1st Dept 2007], affd 10 NY3d 243[2008] ).
“The Supreme Court has held that, [a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections' “ (Gondre v. Silberstein, 744 F Supp 429 [ED N.Y.1990], quoting Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314 [1950] ). “Indeed, where the defect in notice offends traditional due process standards, [t]he fact that the defendant was served in accordance with the foreign rules, or that the judgment is valid in the first state, will not necessarily save the judgment' “ (Gondre, 744 F Supp 429 at 433, quoting Kulzer, The Uniform Foreign Money–Judgments Recognition Act, 13 N.Y. Jud Conf Rep 194, 213 (1968), reprinted in 18 Buffalo L Rev 1, 30 [1969] [with minor editorial revision]; see also, Choi v. Kim, 50 F3d 244, 248 [3rd Cir1995] ; Titan PRT Systems, Inc. v. Fabian, 6 Mass L Rptr 345 [Mass Super 1997] ; Isack v. Isack, 274 Mich.App 259 [Mich.App 2007], app denied 479 Mich. 861[2007] ). “Moreover, although [a] want of fair notice and time to defend in the foreign forum is made a [discretionary] ground for refusing recognition' under New York law, it is a fundamental of due process and nonrecognition is mandatory rather than discretionary” (Gondre, at 433–434, quoting McKinney 1978, Practice Commentaries by David D. Siegel at C5304:1).
The Court of Appeals has recently held that “[a]lthough CPLR article 53 generally provides that a foreign judgment will not be enforced in New York if the foreign court did not have personal jurisdiction over the defendant (CPLR 5304[a][2] ), an exception may be made if prior to the commencement of the proceedings [defendant] had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved' (CPLR 5305[a] [3] ) and was afforded fair notice of the foreign court proceeding that gave rise to the judgment” (Landauer Ltd. v. Joe Monani Fish Co., Inc., 22 NY3d 1129, 1131 [2014] ). It held that “[s]o long as the exercise of jurisdiction by the foreign court does not offend due process, the judgment should be enforced without microscopic analysis' of the underlying proceedings” (Id. at 1131, quoting John Galliano, S.A., 15 NY3d at 81 [internal quotation marks and citation omitted] ). “The ultimate question, therefore, is whether a reasonable method of notification [was] employed and reasonable opportunity to be heard [was] afforded to the person affected' “ (Gondre, at 434, quoting Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 443 [3rd Cir.1971], cert. denied, 405 U.S. 1017 [1972] ). Thus, “[w]hen the challenge to personal jurisdiction in the foreign country is based on improper service of process (or equivalent initiatory papers), the Court's inquiry fuses subsections (a)(2) and (b)(2) of CPLR § 5304 : the proponent of the foreign judgment need not show that service of process was in strict compliance with the relevant foreign laws, but must instead establish meaningful notice' under the circumstances, reasonably calculated to afford defendant an opportunity “in sufficient time to enable [it] to defend”, itself in that action' “ (Shipcraft v. Arms Corp. of the Philippines, Inc., 2013 WL 649415 [Sup Ct N.Y. Cty 2013], quoting John Galliano, S.A., at 80–81, 82). “The Court's inquiry centers on whether the procedure used [for service of process] [was not] fundamentally-unfair,' with the issue of propriety of service under the relevant law left to the discretion of the foreign forum issuing the judgment” (Shipcraft, 2013 WL 649415, quoting John Galliano, S.A., at 81–82, citing Sambataro v. Compagnone, 9 Misc.3d 128A [App Term, 1st Dept 2005] ).
Contrary to the plaintiff law firm's reliance on CPLR 5305(a)(3), the defendants' agreement to submit to jurisdiction in Switzerland does not end the inquiry concerning jurisdiction. In fact, if any of the defendants “had received no meaningful notice of the foreign proceeding, that lack of notice would serve as a legitimate basis for not enforcing the judgment in our state, as the entry of such a judgment would not comport with our conception of personal jurisdiction or our notion of fairness” (John Galliano, S.A., at 81; see also, Constandinou v. Constandinou, 265 A.D.2d 890 [4th Dept 1999] ; but see, Dynamic Cassette Intern. Ltd. v. Mike Lopez & Associates, Inc., 923 FSupp 8 [ED N.Y.1996] ). The plaintiff law firm has established that the Switzerland court's judgments against Rosalie Frisone and Vincent Savarese were not obtained in violation of our principles of due process and accordingly are to be recognized here. The burden accordingly shifts to them to establish the existence of a material issue of fact.
While the plaintiffs have proffered evidence that Rosalie Frisone and Vincent Savarese were served in a manner consistent with the Hague Convention and due process but failed to take action as directed to delegate a service agent in Switzerland, thereby consenting to service via publication in view of the clear warnings, no such showing has been made with respect to Anna Frisone. Again “[g]rounds for nonrecognition include a lack of personal jurisdiction over the defendant by the foreign court and a defendant's failure to receive notice of the proceedings in sufficient time to enable him to defend (emphasis added)' “(John Galliano, S.A., 15 NY3d at 80, citing CPLR 5304[a][2] and quoting CPLR 5304[b][2] ). “Notice of a proceeding is, of course, a fundamental component of a court's proper exercise of personal jurisdiction over a party, and CPLR 5304 itself expressly recognizes a lack of notice as a ground for not recognizing a foreign money judgment in New York” (John Galliano S.A. at 80, citing CPLR 5304[b][2] ). The plaintiff law firm has failed to establish that Anna Frisone had the required notice of the proceeding let alone in time to defend against it. Her general awareness that a proceeding may be commenced hardly equates with notice that one was actually commenced.
John Galliano S.A. v. Stallion, Inc., 15 NY3d 75, relied on by the plaintiff law firm is easily distinguished. There, the defendant's opposition to the plaintiff's enforcement proceeding was rejected because despite the notice being in French, the defendant was found to have had notice that a proceeding was extant. In contrast, here, no evidence has been submitted to establish that Anna Frisone had notice of the action in Switzerland. Under the particular circumstances of this case, “whether notice was effected and what form that notice took, may be facts that are within the exclusive control or knowledge of the defendant. Accordingly, the plaintiff should be afforded an opportunity to conduct discovery on these issues” (Gondre, 744 F Supp at 435, citing 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2741, at 545–551 [2d ed.1983] ).
The plaintiff's motion for summary judgment in lieu of a complaint as against Anna Frisone is denied.
The only opposition submitted by the defendants is an affidavit of Anna Frisone and an affirmation of their attorney. While Anna maintains that a Zurich law firm was not hired and that there were no grounds for a Swiss court to exercise jurisdiction over the defendants, the parties' retainer agreement, the validity of which she has not truly contested, clearly establishes both that the Zurich firm was retained and that the defendants specifically consulted to jurisdiction over them in Switzerland and the application of Swiss law in the event of a dispute between these parties. Adequate grounds for not enforcing the forum selection clause have not been advanced. (See, Sterling Natl. Bank v. Eastern Shipping Worldwide, Inc., 35 AD3d 222, 222 [1st Dept 2006] ), citing British W. Indies Guar. Trust Co. v. Banque Internationale a Luxembourg, 172 A.D.2d 234 [1st Dept 1991] and Boss v. American Express Fin. Advisors, Inc., 6 NY3d 242, 247 [2006] ). In addition, Anna's assertion that the legal matter did not involve Swiss or Italian matters fails miserably. Not only was Rosalie's husband and Anna's father Giuseppe Frisone's compensation when he worked in international shipping partially wired to a Swiss bank account, the plaintiff law firm has clearly established that for various reasons, that account generated documents in Italian necessitating translation. In any event, the defendants may not challenge the underlying merits of the dispute here. (Porisini v. Petricca, 90 A.D.2d 949, 950 [4th Dept 1982], citing CPLR 5303 ; Constandinou, 265 A.D.2d 890 ). Finally, Anna and her attorney's repeated assertion that none of the defendants were properly served in the Switzerland action is conclusive. They fail to identify in any way how the plaintiff law firm's papers in the underlying action were not properly served.
Judiciary Law § 27(b) provides:
“In any case in which the cause of action is based upon an obligation denominated in a currency other than currency of the United States, a court shall render or enter a judgment or decree in the foreign currency of the underlying obligation. Such judgment or decree shall be converted into currency of the United States at the rate of exchange prevailing on the date of entry of the judgment or decree.”
And, the plaintiff law firm is entitled to interest at the statutory rate set forth at CPLR 5004 as of the dates of the Switzerland judgments' entry (Sung Hwan Co., Ltd. v. Rite Aid Corp ., 16 Misc.3d 1104(A) (Sup Ct N.Y. Cty 2007), app dismissed 46 AD3d 288 [1st Dept 2007] ).
Finally, the plaintiff law firm has not cited any support for their request for attorney's fees which are ordinarily not recoverable absent an agreement or statutory provision. (Flemming v. Barnwell Nursing Home & Health Facilities, Inc., 15 NY3d 375, 379 [2010], citing Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491 [1989] ).
In conclusion, the plaintiff's motion for summary judgment in lieu of a complaint against the defendant Anna Frisone is denied. The plaintiff's motion for summary judgment in lieu of a complaint is granted as against the defendants Rosalie Frisone and Vincent Savarese. The judgments procured against them from the District Court of Zurich on June 6, 2013 and June 18, 2013, respectively, are hereby converted to judgments of this court, along with statutory interest effective the dates those judgments were entered by the District Court in Zurich and costs.
This constitutes the decision and order of this Court. All applications not specifically addressed herein are denied.
Submit judgment on notice.