Opinion
No. FST CV 104018630 S
September 21, 2010
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE #105
FACTUAL BACKGROUND
The plaintiff, Bill Rothfarb, brings this action against the defendants, Programit, Inc., Marshall Caro, Protectit Technology, Associated Imperatives, Ltd. and P.I. Systems, Ltd., to enforce a judgment rendered in his favor in the Supreme Court of New York County. In order to resolve the motion that is presently before the court, the following factual background is necessary. In 1987, the plaintiff commenced an action against the defendants in the Supreme Court of New York stemming from, inter alia, the defendants' breach of an employment contract. The case was tried before Justice Karla Moskowitz in December 1990 and January 1991. Justice Moskowitz issued a memorandum of decision on May 3, 1993, in which she issued findings of law and fact and ruled in favor of the plaintiff as to liability. In accordance with New York practice, Justice Moskowitz's decision then ordered the parties to "[s]ettle judgment." See 22 NYCRR 202.48. Specifically, Justice Moskowitz stated that "[t]he parties shall settle judgment in accordance with the foregoing conclusions of fact and law. The judgment shall include detailed, readable and clear accounting statements with itemizations for the accounts concerned, with the invoices and the percentages applied to the invoices to calculate the commissions, based on the evidence at trial, and provide for issuance of stock to plaintiff in conformity with the foregoing finding that plaintiff is entitled to a two percent equity in defendant corporations. The judgment shall also provide for severance of the claim for attorneys fees and a special referee's hearing as to amount."
22 NYCRR 202.40 provides:
(a) Proposed orders or judgments, with proof of service on all parties where the offer is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted. (b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown.
(c)(1) When settlement of an order or judgment is directed by the court, a copy of the proposed order or judgment with notice of settlement, returnable at the office of the clerk of the court in which the order or judgment was granted, or before the judge if the court has so directed or if the clerk is unavailable, shall be served on all parties either:
(i) by personal service not less than five days before the date of settlement; or
(ii) by mail not less than 10 days before the date of settlement.
(2) Proposed counter-orders or judgments shall be made returnable on the same date and at the same place, and shall be served on all parties by personal service, not less than two days, or by mail, not less than seven days, before the date of settlement. Any proposed counter-order or judgment shall be submitted with a copy clearly marked to delineate each proposed change to the order or judgment to which objection is made.
Subsequent to this order, counsel for the plaintiff submitted a proposed order and notice of settlement to Justice Moskowitz on August 19, 1993. After making some handwritten changes and additions on the proposed order, Justice Moskowitz crossed out the words "Notice of Settlement" and replaced them with "Judgment," and signed the order on August 19, 1993. The judgment provided for damages in the plaintiff's favor in the amount of $204,018.23. Justice Moskowitz's decision made no provision for the recovery of postjudgment interest by the plaintiff. For some reason, this order was not filed with the New York County courthouse clerk's office until March 28, 1995.
On March 18, 2010, the plaintiff commenced this action seeking to domesticate the New York judgment in Connecticut pursuant to the Uniform Enforcement of Foreign Judgments Act (UEFJA), General Statutes § 52-604 et seq. in support of his application, the plaintiff filed a certified copy of the subject New York judgment, as well as the relevant certification required by General Statutes § 52-605 (a). In his certification, the plaintiff sought a total judgment in the amount of $475,006.92. This additional amount was calculated in accordance with the nine percent per annum postjudgment interest rate provided under New York law. See CPLR 5044. Judgment was entered in favor of the plaintiff by the clerk's office on March 18, 2010. Although the clerk's office entered judgment in favor of the plaintiff, it denied his request for postjudgment interest on the authority of Ulrich v. Fish, 112 Conn.App. 837, 965 A.2d 567, cert. denied, 292 Conn. 909, 973 A.2d 109 (2009), which provides that such interest is discretionary in Connecticut.
Following the entry of judgment against the defendants, on May 5, 2010, Caro filed a motion to set aside the judgment, as well as a supporting memorandum of law. Caro offered no documentation in support of his motion. On June 11, 2010, the plaintiff filed a memorandum of law in opposition, which attaches the following: (1) the plaintiff's notarized affidavit; (2) an uncertified copy of Justice Moskowitz's May 3, 1993 decision; (3) an uncertified and blank copy of the notice of settlement and proposed judgment and order from the New York action; (4) and uncertified copy of the notice of entry stamped by the New York County courthouse clerk's office on March 28, 1995; (5) a letter from the Connecticut law firm of Zeisler and Zeisler to the plaintiff's original New York counsel dated November 8, 1995 indicating that Caro intended to file for bankruptcy and (6) a certified copy of the judgment and order dated March 28, 1995. The plaintiff also offers the sworn affidavit of his New York attorney in this matter, Evan S. Rothfarb, which attaches the following additional documentation: (1) a printout from the New York Supreme Court website displaying the attorneys for both parties in the original New York action; (2) a printout from the website of the law firm of Fryer Ross, which represented the defendants in the original New York action and (3) the defendants' notice of appeal of the original New York action to the Appellate Division, First Department, dated April 27, 1995. Caro subsequently requested oral argument and a hearing on the issues raised in this motion, and the parties appeared before the court at short calendar on August 23, 2010. At this hearing, the plaintiff testified and was asked questions by counsel for both parties.
Caro is the only defendant who has moved to set aside the judgment. All of the pleadings asking the court to set aside the judgment have only been signed by counsel for the defendants Caro.
Although these documents are uncertified, they are appropriately authenticated by the plaintiff's affidavit.
Although not a member of the Connecticut bar, Attorney Rothfarb, appeared pro hac vice and argued on the plaintiff's behalf at short calendar on August 23, 2010.
DISCUSSION A. GENERAL STANDARD
"The full faith and credit clause of the United States constitution requires a state court to accord to the judgment of another state the same credit, validity and effect as the state that rendered the judgment would give it . . . In accordance with this federal mandate, our legislature enacted the Uniform Enforcement of Foreign Judgments Act, General Statutes § 52-604 et seq. . . . which permits an out-of-state judgment that has been filed here to be enforced in the same manner as an in-state judgment." (Citation omitted; internal quotation marks omitted.) Nastri v. D'Onofrio, 76 Conn.App. 814, 814-15, 822 A.2d 286 (2003). "Because a foreign judgment filed pursuant to the UEFJA has the same effect as a judgment of a court of this state, its enforceability is properly challenged by way of proceedings which are postjudgment in nature, such as a motion to open, vacate, or stay the judgment." Harris v. Harris, 14 Conn.App. 384, 386 n. 2, 540 A.2d 1079 (1988); see also General Statutes § 52-605(b). Accordingly, the motion to set aside judgment brought by Caro is properly before the court. Nevertheless, "the only defenses that a Connecticut court should consider when out-of-state judgment debtors claim that an out-of-state judgment is unenforceable are those that implicate the personal or subject matter jurisdiction of the out-of-state court." (Internal quotation marks omitted.) Cahaly v. Somers, 89 Conn.App. 816, 820, 877 A.2d 837, cert. denied, 275 Conn. 910, 882 A.2d 669 (2005). "Among the defenses implicating the jurisdiction of the out-of-state court is the defense that the foreign judgment was rendered in violation of due process of law because of inadequate notice." Id., 820. "The out-of-state judgment may not be impeached because of mistake or fraud . . . or for reasons of public policy." (Internal quotation marks omitted.) Id. "The United States Supreme Court has consistently held . . . that the judgment of another state must be presumed valid, and the burden of proving a lack of jurisdiction rests heavily upon the assailant." (Internal quotation marks omitted.) J. Corda Construction, Inc. v. Zaleski Corp., 98 Conn.App. 518, 523, 911 A.2d 309 (2006).
In this motion and supporting memorandum of law, Caro offers five reasons as to why the underlying New York judgment is defective and unenforceable: (1) the document purporting to be a judgment is deficient on its face; (2) the underlying judgment was abandoned under New York law, and therefore, it was a nullity when the plaintiff filed this action; (3) the judgment was docketed in New York by fraud, and therefore, it is not entitled to enforcement in Connecticut; (4) the judgment is presently not enforceable in New York without further court intervention, and, consequently, it does not constitute a final judgment under the UEFJA and (5) the plaintiff seeks postjudgment interest that he is not legally entitled to obtain. Each of these arguments will be addressed individually in this memorandum.
B. SUFFICIENCY OF DOCUMENT FILED WITH THE COURT
Caro first argues that the document filed by the plaintiff purporting to be a valid New York judgment "is deficient on its face and is therefore ineffective for its asserted purpose." In support of his position, Caro cites a federal statute, 28 U.S.C. § 1738, as establishing the standard for what type of documents are entitled to full faith and credit by the courts of sister states. Specifically, Caro argues that the document filed with this court is insufficient because: (1) the margins of the document are cut off and portions of it are unreadable, and therefore, the document is not a true and accurate copy of the New York judgment; (2) the document lacks a legible clerk's certification; (3) there is no attestation of a New York Supreme Court justice as required by 28 U.S.C. § 1738 and (4) no proof of service upon the defendant appears on the face of the judgment as required by 22 NYCRR 202.48(a). In response, the plaintiff argues that the document filed with this court is sufficiently legible and that the plaintiff has adhered to all of the procedural filing requirements of the UEFJA. Consequently, the plaintiff contends that the New York judgment should be recognized by this court.
28 U.S.C § 1738 provides:
The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.
The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.
Caro's fourth argument will be addressed later in this memorandum because the issue raised is whether he received sufficient notice of the judgment, as opposed to whether the document filed with the court is sufficient.
In order to resolve this dispute, the court must determine whether the document submitted by the plaintiff must satisfy the requirements of 28 U.S.C. § 1738 in order for it to be entitled to full faith and credit in a Connecticut court. As explained by the Fifth Circuit Court of Appeals, " 28 U.S.C. 1738 (1964) was enacted to implement the full, faith, and credit clause of the United States Constitution by providing a way of exemplifying the records of judicial proceedings held in one state so that such records would be admissible in later judicial proceedings held in another state. Thus, this statute merely means full, faith, and credit must be given if certain requirements are met. However, evidence of judicial proceedings may be admissible if less is shown than the statute requires when it conforms to the rules of evidence of the state where the trial is being held." (Emphasis in original.) Donald v. Jones, 445 F.2d 601, 606, cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543 (5th Cir. 1971). "Moreover, 28 U.S.C. § 1738 contains no language prohibiting a state court from admitting into evidence another state's records of judicial proceedings upon a lesser showing of authenticity that required by the statute." Smith v. Wisconsin, 399 F.Sup.2d 921, 923-24 (W.D. Wis. 2005).
Connecticut has adopted the UEJFA, which establishes the following procedural requirements for certifying a foreign judgment in this state: "A judgment creditor shall file, with a certified copy of a foreign judgment, in the court in which enforcement of such judgment is sought, a certification that the judgment was not obtained by default in appearance or by confession of judgment that it is unsatisfied in whole or in part, the amount remaining unpaid and that the enforcement of such judgment has not been stayed and setting forth the name and last known address of the judgment debtor." General Statutes § 52-605(a). The plaintiff has submitted a certification indicating that the New York judgment was not obtained by default in appearance or by confession of judgment, the debtors' last known addresses and the amount owed on the judgment. As the UEFJA establishes the law in this state regarding what documentation a plaintiff must submit in order to domesticate a foreign judgment, the plaintiff does not need to provide the certification of a justice of the Supreme Court of New York as suggested by 28 U.S.C. § 1738.
Caro is correct in his assertion that portions of Justice Moskowitz's judgment have been cut off during the photocopying process and that the clerk's stamp is so faint as to render it virtually illegible. Nevertheless, a close examination of the clerk's stamp reveals that Supreme Court clerk Norman Goodman does attest that he compared this document to the original filed in his office and that the judgment submitted by the plaintiff in this action is a correct transcript therefrom . . ." Furthermore, although certain portions of Justice Moskowitz's handwritten notations are cut off, the final amount of the judgment is clearly visible, as well the signatures of the justice and clerk. Accordingly, the document is sufficiently readable such that it meets the requirements of the UEFJA. The court rejects this argument in favor of Caro's motion to set aside the judgment.
C. ABANDONMENT OF NEW YORK JUDGMENT
Next, Caro argues that the underlying judgment has been abandoned under New York law, and, as a result, it was a nullity and should not be given full faith and credit in Connecticut. When making this argument, Caro cites to 22 NYCRR § 202.48, which provides that proposed judgments must be filed with the court for signature within sixty days unless otherwise directed by the court. As Justice Moskowitz issued her decision on May 3, 1993, and the proposed judgment was not submitted to the court until August 19, 1993, Caro contends that the judgment was abandoned. Therefore, Caro argues that the New York court did not have personal or subject matter jurisdiction to enter a final judgment. In response, the plaintiff argues that the judgment was not abandoned under New York law because Supreme Court justices have the discretion to approve late submission, which Justice Moskowitz did when he signed the proposed judgment on August 19, 1993. Furthermore, the plaintiff argues that Caro has waived this argument and that the record reveals that there was sufficing cause for Justice Moskowitz to approve the proposed judgment even though it was submitted late.
22 NYCRR 202.48 provides in relevant part: "(a) Proposed order or judgments . . . must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted . . . (b) Failure to submit the order or judgment shall be deemed an abandonment of the motion or action, unless for good cause shown." Despite the seemingly mandatory language of this rule, New York appellate courts have determined that trial justices have discretion as to whether to sign a judgment or order that has been submitted after the sixty-day window. See, e.g., In re Granite Associates, Inc. v. Robin, 69 App.Div.3d 854, 855, 894 N.Y.S.2d 69 (2010) (holding that "[t]he court providently exercised its discretion in denying the appellant's motion to dismiss the petition pursuant to 22 NTCRR 202.48 based on abandonment"); Oliver v. Tanning, 50 App.Div.3d 1259, 1262, 857 N.Y.S.2d 243 (2008) (holding that the "Supreme Court did not abuse its discretion in accepting defendants' untimely submission of the order for signature"). As Justice Moskowitz accepted and signed the plaintiff's proposed judgment after the sixty-day time frame, it must be assumed that she determined there was good cause for the plaintiff's delay in submitting the proposed judgment. Furthermore, there is no evidence before the court that Caro ever objected to the late submission of the proposed judgment at the time that it was signed by Justice Moskowitz or entered by the clerk. In a case before the Appellate Division, Third Department, the court stated that as a result of the "defendant's failure to object to the signing of the judgment in 2000, he has failed to preserve for appeal his argument that the Supreme Court should not have signed the judgment because it was submitted after the 30 days permitted in the order and after the 60-day period prescribed by 22 NYCRR 202.48 . . . Defendant's objections in 2003 are untimely and will not affect a judgment signed almost three years earlier." (Citation omitted.) Rouleau v. LaPointe, 11 App.Div.3d 773, 774, 784 N.Y.S.2d 162 (2004). Although there is some disagreement about whether Caro was properly served with the proposed judgment in 1993, he certainly knew about it by 1995, when he commenced an appeal to the Appellate Division, First Department. For these reasons, the court finds that the underlying judgment was not abandoned under New York law.
D. FRAUD/NOTICE
Caro also argues that the underlying New York judgment was docketed by fraud, and, therefore, it is not entitled to enforcement in Connecticut. The crux of Caro's fraud argument is that the plaintiff violated 22 NYCRR § 202.48 because the plaintiff docketed a judgment that had been abandoned and there is no proof that the plaintiff served the proposed judgment on Caro. As Caro's argument regarding abandonment was already rejected in the previous section, only the service argument will be addressed here.
22 NYCRR § 202.48(a) provides in relevant part: "Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature . . . within 60 days after the signing and filing of the decision directing that the order be settled or submitted." As pointed out by the plaintiff in his memorandum of law in opposition, the plain language of this rule seems to suggest that it is only necessary for proof of service to be shown on proposed orders, not proposed judgments. Nevertheless, 22 NYCRR § 22.48(c) does require that: "(1) When settlement of an order or judgment is directed by the court, a copy of the proposed order or judgment with notice of settlement, returnable at the office of the clerk of the court in which the order or judgment was granted, or before the judge if the court has so directed or if the clerk is unavailable, shall be served on all parties either; (i) by personal service not less than five days before the date of settlement; or (ii) by mail not less than 10 days before the date of settlement."
On the "notice of settlement" page, which is attached to the final judgment signed by Justice Moskowitz, there is a notation indicating that the document was sent to "FRYER ROSS GOWAN, 551 Fifth Avenue, New York, New York 10176." It is not disputed that Hugh Fryer of that firm was Caro's attorney during the trial before Justice Moskowitz. Although this notation suggests that the proposed judgment was served on Caro, it does not conclusively prove that such service took place. Nevertheless, in paragraph nineteen of his affidavit, the plaintiff attests that his lawyer "verbally indicated to me that a copy of the Notice of Settlement had been served upon Mr. Caro's counsel." This attestation is not disputed by Caro with any admissible documentary evidence, and Caro did not take the stand during the hearing before this court in order to refute this contention. Moreover, the plaintiff attests that Caro and his attorney fully participated in the process of settling the proposed judgment. It is also important to note that there is documentary evidence indicating that Caro's counsel was served with the notice of entry of judgment on March 29, 1995 and that Caro commenced an appeal to the Appellate Division, First Department on April 27, 1995. Therefore, it is disingenuous for Caro to argue that he did not have notice of the underlying New York judgment until the plaintiff sought to domesticate it in Connecticut in 2010. Caro has had fifteen years to attack this judgment in a New York court, and he has chosen not to do so. Consequently, this argument is insufficient to grant Caro's motion to set aside the judgment.
E. ENFORCEABILITY OF NEW YORK JUDGMENT
Next, Caro argues that the underlying New York judgment is not enforceable without court intervention, and, therefore, it is not a final judgment that is entitled to full faith and credit. Specifically, Caro argues that although money judgments in New York are valid for a period of twenty years, a lien of judgment expires after ten years. An extension of the lien may be obtained, but that requires action by the court. Caro notes that the plaintiff has already filed a putative judgment lien against him on the Greenwich land records. Consequently, Caro contends that "to permit the enforcement in Connecticut of a judgment of a foreign state which would not be enforceable in that foreign state is contrary to the spirit and the letter of the UEJFA and to the federally enacted legislation governing full faith and credit requirements . . ." In response, the plaintiff argues that "Caro equates the expiration of an automatic postjudgment procedural device with the loss of finality. No such relationship between the finality and post-judgment enforcement mechanisms exists under the law of New York. The final judgment and Order in the underlying [action] is immediately enforceable in New York against Mr. Caro without further court intervention." Consequently, the plaintiff contends that this argument offered by Caro is without merit.
The New York Court of Appeals has explained that a "final judgment" is "one that disposes of all of the causes of action between the parties in the action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters . . ." Burke v. Crosson, 85 N.Y.2d 10, 15, 647 N.E.2d 736, 623 N.Y.S.2d 524 (1995). The CPLR further defines "final judgment" as "a judgment that is final and not appealable, and settlement." CPLR 8602(c). Caro does not argue that Justice Moskowitz's opinion did not decide all of the issues raised in the case. Rather, Caro contends that the judgment somehow lost its finality because of the expiration of the ten-year lien on real property. Under New York law, money judgments are valid and enforceable for a period of twenty years. CPLR 211(b). Consequently, whether the twenty-year period commenced in 1993 when Justice Moskowitz issued her decision, or in 1995 when it was entered by the clerk's office, the plaintiff is still within the statutory period allowed by New York law to enforce the judgment rendered in his favor. While it may be true that the plaintiff is not entitled to an automatic judgment lien on Caro's Connecticut property under the terms of New York law, that is not the issue raised in this motion. At this time, the only issue before the court is whether it should set aside a judgment domesticating the decision from the underlying New York case. If Caro believes that the plaintiff has wrongly entered a lien on his real property in this state, he can bring an action to discharge the lien as allowed by General Statute § 49-51. Therefore, the court rejects the argument that the New York judgment is not enforceable.
CPLR 211(b) provides in relevant part: "A money judgment is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to enforce it."
CT Page 18855
F. POSTJUDGMENT INTEREST
The final issue briefed by the parties is the validity of the postjudgment interest sought by the plaintiff. In his § 52-605 certification, the plaintiff indicated that he is seeking a total judgment of $475,006.92, even though the amount listed on Justice Moskowitz's decision is $204,018.23. Although the clerk's office entered judgment in favor of the plaintiff, the clerk's office denied any postjudgment interest because such interest is discretionary in Connecticut and Justice Moskowitz's decision did not specifically award any interest to the plaintiff. As a result of the plaintiff's attempt to obtain postjudgment interest, Caro argues that "the plaintiff has fraudulently certified to this court an amount far in excess of the amount of the purported foreign judgment by including post-judgment interest to which he is not entitled." In response, the plaintiff argues that postjudgment interest is mandatory under New York law, and therefore, it has to be awarded to the plaintiff under full faith and credit principles.When resolving this dispute, it is important to note the precise motion that is presently before the court. Caro has brought a motion to set aside a Connecticut judgment domesticating a previous New York decision. The plaintiff at this time has a Connecticut judgment in his favor in the amount of $204,018.23. Caro has cited no authority that stands for the proposition that the plaintiff's attempt to obtain postjudgment interest implicates the personal or subject matter jurisdiction of the New York court, which are the only appropriate grounds for challenging the domestication of an out-of-state judgment under the UEJFA. Therefore, the fact that the plaintiff may have conceivably sought an amount of damages in excess of that to which he was entitled is not a sufficient reason to set aside the domestication judgment. Similarly, although the plaintiff may be correct in his assertion that he is entitled to postjudgment interest under New York law, the plaintiff is essentially using his memorandum of law in opposition to Caro's motion to ask this court to modify an existing judgment. The plaintiff has not filed any motion to open or modify the judgment entered by the clerk's office in order for the postjudgment interest to be assessed. "Because a foreign judgment filed pursuant to the UEFJA has the same effect as a judgment of a court of this state, its enforceability is properly challenged by way of proceedings which are postjudgment in nature, such as a motion to open, vacate, or stay the judgment." Harris v. Harris, supra, 14 Conn.App. 386 n. 2. Therefore, the court will not address the plaintiff's request to add any post interest judgment to the existing judgment at this time.
CONCLUSION
The motion to set aside the judgment entered in the plaintiff's favor on March 18, 2010 is denied for all of the reasons stated above. PAGE 14]