Opinion
46656/2002.
Decided November 5, 2004.
Victoria Bach, Esq., for the plaintiff.
Courtney P. Murphy, Esq., Stock Carr, for defendant.
In this action to enforce a money judgment entered in a foreign state by default, defendant moves pursuant to CPLR § 3212 for summary judgment dismissing the action, alleging that the foreign court that entered the judgment did not have personal jurisdiction over the defendant and that therefore this judgment should not be recognized by New York courts pursuant to CPLR § 5304 (a)(2).
FACTS
On August 21, 1987, defendant and his wife "Galina Khalif," purchased real property located at 635 Westfield Avenue, Elizabeth, New Jersey from the plaintiff. At the closing of title plaintiff, defendant and his wife, executed an agreement whereby plaintiff was permitted to store medical supplies, records and equipment at the subject property for a period of up to 90 days post-closing. Following the closing defendant resided with his wife at the subject property; however, subsequent to the expiration of the 90 days period, the plaintiff's belongings were still in the subject property.
See Exhibit 1, complaint in N.J. action.
See Exhibit A, defendant's deposition, plaintiff's affidavit in opposition.
On or about May 5th to May 7th 1988, defendant and his wife were involved in a family dispute which culminated in their divorce. At this time, defendant was removed by the police from the property at 635 Westfield Avenue and an order of protection was issued on behalf of his wife, ordering defendant to stay away from the premises. Defendant moved to 201 Brighton 1st Road, Brooklyn, NY where he resided at the time the New Jersey action was filed.
See Exhibit 5, defendant's affidavit in his moving papers.
On December 1, 1989, plaintiff filed an action in the Superior Court of New Jersey under docket No.: UNN-L-08055-89 naming defendant and his wife as the defendants. The summons was addressed to Galina Khalif only and the address for service of process as "c/o While-U-Wait Cleaning Tailoring Service, 483 Westfield Avenue, Roselle Park, N.J. 07204." The summons did not contain the name of the defendant or his address for service of process. Defendant's wife was served with the summons and complaint on January 18, 1990. Defendant was never served and never appeared in the New Jersey action.
See Exhibit 3, summons complaint in the moving papers.
At the time, Galina Khalif was served, she and defendant had been separated for almost two years and by then may have already been divorced. Defendant appeared for a deposition in the New Jersey action on March 11, 1991 at plaintiff and co-defendant Galina Khalif's request. Defendant appeared for this deposition without an attorney and answered questions put to him by the attorneys for the plaintiff and the co-defendant.
See Exhibit A in plaintiff's opposition, EBT transcripts.
On March 10, 1992, the Hon. Lawrence Weiss, J.S.C. ordered that a final judgment be entered on default in favor of plaintiff and against the defendant in the total amount of $13,029.43. This is the judgment plaintiff is now seeking to enforce.
ISSUES
I. Should the New York Court recognize the foreign judgment?
II. Did the New Jersey court obtain personal jurisdiction over defendant Yefim Khalif by virtue of his appearance at a deposition on March 11, 1991?
For the reasons that follow, both questions must be answered in the negative, defendant's motion must be granted and the action must be dismissed.
LEGAL ANALYSIS
Initially we must point out that CPLR § 5304 deals with the grounds for the non-recognition of a "foreign country" judgment; that is a judgment issued by any governmental unit other than the United States or any state, district, commonwealth, territory, insular possession thereof, or the Panama Canal zone or the Trust Territory of the Pacific Islands (McKinney's Consolidated Laws of New York CPLR § 5301 definitions p. 539). The judgments of sister states are entitled to the Full Faith and Credit in this state, except when obtained by default in appearance or by confession (See McKinney's Consolidated Laws of New York, supra at 563).
As a matter of Full Faith and Credit, review by New York Courts is limited to determining whether the rendering court has jurisdiction. This is an inquiry which includes due process considerations (see Fiore v. Oakwood Plaza, 78 NY2d 572, 585 NE2d 364, 578 NYS2d 115; Parker v. Hoefer, 2 NY2d 612). "The Court in Fiore found no due process violation, where the parties had engaged in an arm's length business transaction, were represented by counsel and the defendant was on actual notice of the entry of the judgment and in fact sought to challenge it prior to its execution."
Courts of this state will not enforce the underlying foreign judgment where the rendering state lacked jurisdiction (Schulz v. Barrons, 263 AD2d 565, 693 NYS2d 658 [1999 3d Dept.]; City Fed. Sav. Bank v. Reckmeyer, 178 AD2d 503; Gladding Corp. v. Balco-pedrick Parts Corp., 76 AD2d 11).
"If the defendant appears in the foreign court to contest that court's jurisdiction over defendant and the issue is decided in favor of personal jurisdiction and a default judgment is issued, it becomes res judicata and the defendant may not re-litigate that issue in the courts of this state (Schulz v. Barrows, supra; Staton Wholesale v. Barker, 257 AD2d 902).
Defendant separated from his wife in 1988 and a divorce action was filed and judgment of divorce rendered not long thereafter. At the time the action was commenced defendant was residing in the State of New York for over a year. Service of process was directed at his former wife at her place of business and there is no indication defendant was ever actually served.
Personal jurisdiction is obtained if the summons is personally delivered to the defendant in New York. This jurisdiction will lie regardless of the nature of the claim (see Siegel's NY Practice 3d. Edition § 59 p. 79). Defendant was not served in this state or in the foreign jurisdiction either personally or by substituted service. As such, the foreign state lacked jurisdiction over the defendant, and this court may not enforce its judgment.
A court may exercise jurisdiction over a defendant when despite not being properly served, the defendant appears in the action voluntarily. A defendant appears in an action by serving a notice of appearance, or by serving an answer or by making a motion that has the effect of extending the answering time (see CPLR § 320(a)). An appearance of the defendant is equivalent to personal service of the summons upon him unless an objection to the jurisdiction of the court is raised (see CPLR § 320(b)).
A defendant whose participation in an action reaches a certain level of activity will be held to have "informally appeared" even though the defendant has not interposed any of the three responses in CPLR § 320(a). When a defendant has "informally appeared" and submits to the jurisdiction of the court is largely a matter of degree and depends necessarily upon the facts (Hayuck v. Hallock, 11 Misc2d 1086, 172 NYS2d 19; Henderson v. Henderson, 247 NY 428, 160 NE 775).
Thus, Courts have found defendant has "informally appeared" and waived any objection to the court's jurisdiction where "defendant has served a notice of examination before trial on plaintiff's attorney and conducts a physical examination and an examination before trial of the plaintiff (Hayuk v. Hallock, supra), where the defendant serves notices of examinations before trial of plaintiff, defendant's attorneys stipulate that defendant is the owner of the vehicle involved in the accident, defendant's attorneys take plaintiff's deposition at their offices and plaintiff's attorneys take defendant's deposition (McGowan v. Bellanger, 32 AD2d 293, 301 NYS2d 712 (1969)).
Courts have refused to find defendant "informally appeared" where defendant serves a notice of deposition prior to the return date of a motion to confirm an attachment (Al-Dohan v. Kouyoumjian, 93 AD2d 714, 462 NYS2d 2 (1983)), where defendant serves demand for x-rays pertaining to plaintiff's condition in medical malpractice action (Pendergrast v. St. Mary's Hospital, 156 AD2d 436, 548 NYS2d 711).
Courts will most often find defendant has made an "informal appearance resulting in a waiver of jurisdiction when the defendant has taken steps indicative to a defense of the action on the merits. Such is not the case here. Submitting himself to an examination before trial by plaintiff and co-defendant's attorneys does not constitute an act on the part of defendant conducive to a defense on the merits of the action. Defendant did not serve notices of examinations before trial or take the plaintiff's deposition or engaged in other discovery requests. A one time appearance for deposition at plaintiff and co-defendant's request is not an informal appearance and does not confer personal jurisdiction over the defendant on the court.
CONCLUSION
Defendant was not served with a summons either personally or by substituted service therefore the court could not exercise jurisdiction over his person. His appearance at a deposition at the request of plaintiff and his co-defendant did not constitute an "informal appearance" waiving any jurisdictional objections and conferring jurisdiction over his person upon the foreign court. Since the court lacked jurisdiction over the person of the defendant the foreign judgment obtained on default is invalid, and not entitled to Full Faith and Credit in New York.
Accordingly, defendant's motion for summary judgment dismissing plaintiff's action for the enforcement of a money judgment entered in a foreign state in the amount of $13,029.43 is granted in every respect and the action is dismissed.
This constitutes the Decision and Order of the Court.