United States District Court, Southern District of New York
August 5, 1991
PROSPER PARIENTE AND REGIS ANDER, PLAINTIFFS,
SCOTT MEREDITH LITERARY AGENCY, INC., DEFENDANT.
The opinion of the court was delivered by: Leisure, District Judge:
ORDER AND OPINION
This is an action to enforce a foreign judgment. Plaintiffs
have now moved, pursuant to Federal Rule of Civil Procedure 56,
for summary judgment enforcing the foreign judgment. Defendant
has cross-moved, pursuant to the same rule, to dismiss all or
part of the complaint on several grounds. For the reasons
stated below, plaintiffs' motion is granted in part, with
judgment reserved in part pending submission of supplemental
briefs. Defendant's cross-motion is granted in part, and denied
This action to enforce a French judgment against defendant
Scott Meredith Literary Agency, Inc. ("SMLA") arises out of the
1984 sale by Clark Howard ("Howard") to
plaintiff Prosper Pariente ("Pariente") of an option for motion
picture rights to Howard's novel The Arm.*fn1 Subsequent to
this purchase, Pariente, plaintiff Regis Ander ("Ander"), and
Patrice Valota ("Valota")*fn2 collaborated in writing a
screenplay derived from the novel. It was later discovered that
Howard had previously sold the motion picture rights to this
novel to another buyer, and thus Pariente's purchase was void.
Litigation in France followed. The Court of Appeals of Paris,
modifying a lower court judgment,*fn3 held SMLA, as Howard's
literary agent, liable to Pariente and Ander for 412,000 and
212,000 French francs, respectively.*fn4 Plaintiffs were found
liable to KUIV Productions ("KUIV"), a company with which they
had contracted to produce their screenplay. Howard, but not
SMLA, was required to indemnify plaintiffs for any amounts they
were required to pay KUIV.
The cross-motions before this Court raise three issues.
First, SMLA seeks an order dismissing plaintiffs' second and
sixth causes of action, in which plaintiffs seek
indemnification from SMLA of any amounts plaintiffs are
required to pay KUIV. Second, SMLA seeks an order dismissing
the fifth, seventh and eighth causes of action, which assert
Ander's claims, on the ground this Court lacks subject matter
jurisdiction over those claims. Third, the parties have
cross-moved with respect to the issue of whether this Court
should enforce the Judgment.
Federal Rule of Civil Procedure 56(c) provides that summary
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505,
2509-10, 91 L.Ed.2d 202 (1986). "Summary judgment is
appropriate if, 'after drawing all reasonable inferences in
favor of the party against whom summary judgment is sought, no
reasonable trier of fact could find in favor of the non-moving
party.'" United States v. All Right, Title & Interest in Real
Property, etc., 901 F.2d 288, 290 (2d Cir. 1990) (quoting
Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d
Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 391, 102 L.Ed.2d
The substantive law governing the case will identify those
facts which are material, and "[o]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 2510, 91 L.Ed.2d 202 (1986). "[T]he judge's function is
not himself to weigh the evidence and determine the truth of
the matter but to determine whether there does indeed exist a
genuine issue for trial." Anderson, supra, 477 U.S. at 249, 106
S.Ct. at 2511; see also R.C. Bigelow, Inc. v. Unilever N. V.,
867 F.2d 102, 107 (2d Cir.), cert. denied, 493 U.S. 815, 110
S.Ct. 64, 107 L.Ed.2d 31 (1989). The party seeking summary
judgment "bears the initial responsibility of informing the
district court of the basis for its motion," and identifying
which materials "it believes
demonstrate the absence of a genuine issue of material fact."
Celotex, supra, 477 U.S. at 323, 106 S.Ct. at 2552-53; see also
Trebor Sportswear Co. v. Limited Stores, Inc., 865 F.2d 506,
511 (2d Cir. 1989).
Once a motion for summary judgment is properly made, however,
the burden then shifts to the non-moving party, which "'must
set forth facts showing that there is a genuine issue for
trial.'" Anderson, supra, 477 U.S. at 250, 106 S.Ct. at 2511
(quoting Fed.R.Civ.P. 56(e)). "[T]he mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact." Anderson, supra, 477 U.S. at 247-48, 106 S.Ct. at 2510
(emphasis in original). "Conclusory allegations will not
suffice to create a genuine issue. There must be more than a
'scintilla of evidence,' and more than 'some metaphysical doubt
as to the material facts.'" Delaware & Hudson Railway Co. v.
Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990)
(quoting Anderson, supra, 477 U.S. at 252, 106 S.Ct. at 2512
and Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d
538 (1986)); see also Carey v. Crescenzi and Harenzy Realty
Corp., 923 F.2d 18, 21 (2d Cir. 1991). "The non-movant cannot
'escape summary judgment merely by vaguely asserting the
existence of some unspecified disputed material facts,' or
defeat the motion through 'mere speculation or conjecture.'"
Western World Insurance Co. v. Stack Oil, Inc., 922 F.2d 118,
121 (2d Cir. 1990) (quoting Borthwick v. First Georgetown
Securities, Inc., 892 F.2d 178, 181 (2d Cir. 1989) and Knight
v. U.S. Fire Insurance Co., 804 F.2d 9, 12 (2d Cir. 1986),
cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762
I. Plaintiffs' Claims for Indemnification by SMLA
The second and sixth causes of action in the complaint seek
indemnification by SMLA for amounts the Judgment held Pariente
and Ander liable to KUIV. Plaintiffs subsequently admitted that
they are "not entitled to indemnification by SMLA for any part
of the amounts awarded to KUIV Productions against plaintiffs."
Plaintiffs' Response to Defendant's First Request for
Admissions, attached as Exhibit 3 to the Glasgow Affidavit.
Plaintiffs now concede that SMLA is entitled to summary
judgment on the second and sixth causes in action, the requests
for indemnification. Affidavit of Gelacio M. Cordero, Esq.,
sworn to on June 11, 1991 ("Cordero Aff."), ¶ 2 n. 3.
Accordingly, SMLA's cross-motion for summary judgment on
plaintiffs' second and sixth causes of action is granted.
II. Subject Matter Jurisdiction Over Ander's Claims
The Court's subject matter jurisdiction over this action is
based on the diversity of citizenship*fn5 of the parties.*fn6
As discussed above, the parties now concur that the most Ander
is entitled to is 212,000 French francs. SMLA has submitted
uncontroverted evidence that, from the date of the decision of
the Paris Court of Appeals until the present time, this sum, as
converted into United States currency, has never exceeded
$50,000. Affidavit of Frank R. Curtis, Esq., sworn to on May
23, 1991 ("Curtis
Aff."), ¶ 5.*fn7 SMLA has thus cross-moved for summary
judgment on Ander's remaining claims, the fifth, seventh, and
eighth causes of action in the complaint, on the ground of lack
of subject matter jurisdiction. Such a motion may be made at
any stage of the proceedings. Fed.R.Civ.P. 12(h)(3).
A plaintiff always bears the burden of showing that the
district court has jurisdiction, McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80
L.Ed. 1135 (1936). Ander makes two arguments in support of this
Court's exercise of jurisdiction over his remaining claims.
First, Ander cites New York Judiciary Law § 27(b) for the
proposition that the value of a foreign judgment must be
calculated at the time the judgment is entered.*fn8 From this,
Ander argues that changes in the rate of exchange between the
French franc and American dollar between now and entry of
judgment could occur that would result in 212,000 French francs
becoming worth in excess of $50,000.
Contrary to Ander's contention, however, New York Judiciary
Law § 27(b) — which pertains to the calculation of foreign
judgments, and not to the determination of questions of federal
diversity jurisdiction — is not applicable to the issue at
hand.*fn9 Although Ander correctly states that in a diversity
suit a federal court applies the substantive law of the state
in which it resides, Erie Railroad Co. v. Tompkins,
304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), he fails to recognize
that "state law does not affect the federal definition of when
a plaintiff may bring a diversity action in this court."
National Union Fire Insurance Company of Pittsburgh v. Barney
Associates, 130 F.R.D. 291, 294 (S.D.N.Y. 1990). It is long
settled that, with regard to the threshold question of
jurisdiction, the value of the matter in controversy is
determined at the action's commencement. See St. Paul Mercury
Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289-90, 58 S.Ct.
586, 590-91, 82 L.Ed. 845 (1938); Zacharia v. Harbor Island
Spa, Inc., 684 F.2d 199, 202 (2d Cir. 1982); Peoples
Westchester Savings Bank v. Ganc, 705 F. Supp. 164, 166
(S.D.N.Y. 1989). Under Fed.R.Civ.P. 3, an action commences when
the complaint is filed with the court. When Ander's remaining
claims were filed they failed to meet the jurisdictional
amount, and thus they do not, by themselves, support this
Court's exercise of jurisdiction over them pursuant to
28 U.S.C. § 1332.
Ander's second argument is that his remaining claims should
be aggregated with those of his co-plaintiff, Pariente, whose
claims alone exceed $50,000. However, in a lawsuit involving
multiple plaintiffs and a single defendant, each plaintiff's
claims must individually satisfy the jurisdictional amount.
Zahn v. International Paper Co., 414 U.S. 291, 294, 94 S.Ct.
505, 508, 38 L.Ed.2d 511 (1973). This rule "requires dismissal
of those litigants whose claims do not satisfy the
jurisdictional amount, even though other litigants assert
claims sufficient to invoke the jurisdiction of the federal
court." Zahn, supra, 414 U.S. at 295, 94 S.Ct. at 509.
The rule forbidding aggregation, which dates back as early as
1832, Oliver v. Alexander, 6 Pet. 143, 8 L.Ed. 349 (1832), has
a single exception: a suit in which "'several plaintiffs unite
to enforce a single title or right, in which they have a common
and undivided interest.'" Zahn, supra, 414 U.S. at 294, 94
S.Ct. at 508 (quoting Troy
Bank v. G.A. Whitehead & Co., 222 U.S. 39, 40-41, 32 S.Ct. 9,
9-10, 56 L.Ed. 81 (1911)). In such an instance, "'it is enough
if their interests collectively equal the jurisdictional
amount.'" Zahn, supra, 414 U.S. at 294, 94 S.Ct. at 508-09
(quoting Troy Bank, supra, 222 U.S. at 41, 32 S.Ct. at 9).
The facts of this case do not fall under the Troy Bank
exception. Although Pariente and Ander have joined together to
enforce a single judgment, underlying this action are two
separate transactions: Pariente attempted to purchase the film
rights to The Arm; Pariente, Ander and Valota collaborated in
writing a screenplay derived therefrom. Moreover, the fact that
the French court awarded Pariente and Ander different amounts
— 412,000 and 212,000 French francs, respectively —
demonstrates that more than "'a single title or right, in which
[both plaintiffs] have a common and undivided interest'" is at
issue. Zahn, supra, 414 U.S. at 294, 94 S.Ct. at 508 (quoting
Troy Bank, supra, 222 U.S. at 40-41, 32 S.Ct. at 9) (emphasis
added). "Aggregation of plaintiffs' claim cannot be made merely
because the claims derived from a single instrument, or because
the plaintiffs have a community of interest." Thomson v.
Gaskill, 315 U.S. 442, 447, 62 S.Ct. 673, 675, 86 L.Ed. 951
(1942). Where, as here, "[t]here is no contention by any party
. . . that the injuries claimed are not separate as to each
plaintiff," Hylte Bruks Aktiebolag v. Babcock & Wilcox Co.,
305 F. Supp. 803, 807 (S.D.N.Y. 1969), aggregation of plaintiffs'
claims is not appropriate.
The parties have, however, failed to address a third
principle of law that theoretically could permit this Court to
exercise subject matter jurisdiction over Ander's remaining
claims. That rule has been stated by the Second Circuit as
Although diversity jurisdiction depends upon the
amount in controversy exceeding [$50,000],
jurisdiction is not lost because a plaintiff's
ultimate recovery is less than that amount. The
jurisdictional determination is to be made on the
basis of the plaintiff's allegations, not on a
decision on the merits. Moreover, even where those
allegations leave grave doubt about the likelihood
of a recovery of the requisite amount, dismissal
is not warranted.
Zacharia, supra, 684 F.2d at 202.
Jurisdiction, once established, cannot be
destroyed by a subsequent change in events. For
example, "even if part of the claim is dismissed
on a motion for summary judgment, thereby reducing
plaintiff's claim below the requisite amount, the
court retains jurisdiction to adjudicate the
balance of the claim."
Klepper v. First American Bank, 916 F.2d 337
, 340 (6th Cir.
1990) (Timbers, J., sitting by designation) (quoting Wright,
Miller & Cooper, 14A Federal Practice and Procedure §
3702 (1985)). Rather, "[i]t must appear to a legal certainty that
the claim is really for less than the jurisdictional amount to
justify a dismissal." A.F.A. Tours, Inc. v. Whitchurch,
937 F.2d 82
, 87 (2d Cir. 1991) (quoting Red Cab, supra, 303 U.S. at
289, 58 S.Ct. at 590) (emphasis in A.F.A. Tours).
Because the "legal certainty test" is difficult to satisfy,
and because the Second Circuit has indicated that "[b]efore
making a determination that the plaintiff's claim does not meet
the jurisdictional minimum the court must afford the plaintiff
an 'appropriate and reasonable opportunity to show good faith'"
in having believed that a recovery greater than $50,000 was
possible, A.F.A. Tours, supra, 937 F.2d at 87-88 (quoting
Arnold v. Troccoli, 344 F.2d 842, 846 (2d Cir. 1965)), the
Court will request supplemental briefing from the parties
before deciding this issue.
III. Enforcement of the French Judgment
Plaintiffs have moved for summary judgment seeking
enforcement of the Judgment. SMLA has cross-moved for summary
judgment, seeking dismissal of the complaint in this action and
thus non-enforcement of the Judgment, on the ground that the
Paris Court of Appeals based its decision holding SMLA liable
on an industry custom for which SMLA asserts there was no
evidence. In SMLA's view, the Judgment therefore violated
standards of due process and is contrary to public policy, and
thus should not be enforced.
A. Comity Generally
"[T]he recognition of foreign judgments and proceedings is
governed by principles of comity." Victrix Steamship Company,
S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 713 (2d Cir. 1987).
Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95
(1895), "the seminal case in the area of enforcement of foreign
judgments," Tahan v. Hodgson, 662 F.2d 862, 864 (D.C. Cir.
1981), holds that if the foreign forum provides
a full and fair trial . . . before a court of
competent jurisdiction, conducting the trial upon
regular proceedings, after due citation or
voluntary appearance of the defendant, and under a
system of jurisprudence likely to secure an
impartial administration of justice between the
citizens of its own country and those of other
countries, and there is nothing to show either
prejudice in the court or in the system of laws
under which it was sitting, or fraud in procuring
the judgment, or any other special reason why the
comity of this nation should not allow it full
effect, the merits of the case should not, in an
action brought in this country upon the judgment,
be tried afresh, as on a new trial or an appeal,
upon the mere assertion of [a] party that the
judgment was erroneous in law or in fact.
Hilton, supra, 159 U.S. at 202-03, 16 S.Ct. at 158.
This rule, "extend[ing] comity whenever the foreign court
ha[s] proper jurisdiction and enforcement does not prejudice
the rights of United States citizens or violate domestic public
policy," Victrix, supra, 825 F.2d at 713, has consistently been
followed in this Circuit. See, e.g., Ackermann v. Levine,
788 F.2d 830 (2d Cir. 1986); Cunard Steamship Company Ltd. v. Salen
Reefer Services A.B., 773 F.2d 452 (2d Cir. 1985); Clarkson
Company, Ltd. v. Shaheen, 544 F.2d 624 (2d Cir. 1976).
B. New York Law
New York law governs actions brought in New York to enforce
foreign judgments. See In re Union Carbide Corporation Gas
Plant Disaster at Bhopal, 809 F.2d 195 (2d Cir.), cert. denied,
484 U.S. 871, 108 S.Ct. 199, 98 L.Ed.2d 150 (1987). Except in
certain specified situations,*fn10 New York law provides that
"a foreign-country judgment that is final, conclusive and
enforceable where rendered must be recognized and will be
enforced as 'conclusive between the parties to the extent that
it grants or denies recovery of a sum of money'. . . ." Union
Carbide, supra, 809 F.2d at 204 (quoting CPLR § 5303). "A
judgment of a court in a foreign nation is presumed valid if
that judgment, or the pleadings, shows that the court had
jurisdiction over the action and is a court of general
N.Y.Jur.2d, Enforcement and Execution of Judgments § 60, at 90
(1986). As a leading commentator has noted, "[s]o liberal has
New York case law been in the recognition of the judgments of
foreign nations that the occasion for the use of Article 53 has
been rare." Siegel, CPLR § 5301 Practice Commentary C5301:1, at
486 (McKinney's 1978).
C. Enforcement of the French Judgment
In the case at bar, SMLA asserts two bases for
non-enforcement of the Judgment: that the Judgment is
incompatible with the requirements of due process, CPLR §
5304(a)(1), and that it is contrary to the public policy of New
York. CPLR § 5304(b)(4). Both of these arguments arise from the
French court's supposed reliance on a custom requiring literary
agents to verify that their author-clients own the literary
rights they are purporting to sell. In particular, SMLA
complains that no evidence of such a custom was presented to
the French court by plaintiffs, and that the Judgment thus
violates due process and is repugnant to public policy.*fn11
As SMLA has offered no other objections to enforcement of the
Judgment, and as the record indicates that the other
prerequisites of comity and the New York statute are satisfied,
this Court will limit its analysis to the issues of due process
and public policy.*fn12
1. Due process
"[I]n order for comity to be extended, the foreign court must
abide by fundamental standards of procedural fairness."
Cunard, supra, 773 F.2d at 457.*fn13 However, it is well
established that mere divergence from American procedure does
not render a foreign judgment unenforceable. "As Judge Cardozo
so lucidly observed: 'We are not so provincial as to say that
every solution of a problem is wrong because we deal with it
otherwise at home.'" Ackermann, supra, 788 F.2d at 842 (quoting
Loucks v. Standard Oil Co., 224 N.Y. 99, 110-11, 120 N.E. 198
(1918) (Cardozo, J.)). "Under New York law[,] . . . foreign
decrees and proceedings will be given respect . . . even if the
result under the foreign proceeding would be different than
under American law." Drexel Burnham Lambert Group Inc. v.
Galadari, 610 F. Supp. 114, 118 (S.D.N.Y.), vacated in part on
other grounds, 777 F.2d 877 (2d Cir. 1985); see also Watts v.
Swiss Bank Corp., 27 N.Y.2d 270, 317 N.Y.S.2d 315,
265 N.E.2d 739 (1970).
Differences in evidentiary standards have been treated
similarly. In Hilton, the
Supreme Court upheld enforcement of a French judgment, despite
the fact that
one of the plaintiffs was permitted to testify not
under oath, and was not subjected to
cross-examination by the opposite party, and . . .
the defendants were therefore deprived of the
safeguards which are by our law considered
essential to secure honesty and to detect fraud in
a witness, and . . . documents and papers were
admitted in evidence, with which the defendants
had no connection, and which would not be
admissible under our own system of jurisprudence.
Hilton, supra, 159 U.S. at 204-05, 16 S.Ct. at 159. In so
ruling, the Hilton Court stated:
it having been shown by the plaintiffs, and hardly
denied by the defendants, that the practice
followed and the method of examining witnesses
were according to the laws of France, we are not
prepared to hold that the fact that the procedure
in these respects differed from that of our own
courts is of itself a sufficient ground for
impeaching the foreign judgment.
Hilton, supra, 159 U.S. at 205, 16 S.Ct. at 159; see also
Tahan, supra, 662 F.2d at 866 n. 18 ("Hilton . . . stands for
the proposition that American courts have been signally
reluctant to deny recognition to foreign judgments by virtue of
mere difference of procedure").
In the case at bar, SMLA argues that the discussion of
"custom" that was presented to the Paris Court of Appeals in
the form of "plaidoirie argument" and "conclusions d'appel" is
not "evidence," and thus the Judgment, referring as it does to
"custom," is incompatible with the requirements of due process.
However, this is precisely the type of evidentiary question of
which principles of comity and the provisions of CPLR §§
5302-04 counsel against microscopic review by this Court. SMLA
has presented no evidence that the Paris Court of Appeals
afforded it anything less than a full opportunity to be
heard,*fn14 that it was the victim of any prejudice in either
the French judicial or legal systems,*fn15 or that the
Judgment was obtained by fraud. This Court will not sit as an
appellate court in review of the judgment of a foreign court,
where the procedures giving rise to that judgment did not
violate due process.
2. Public policy
SMLA's second contention is that the Judgment should not be
recognized because doing so would be contrary to public policy.
"A judgment is unenforceable as against public policy to the
extent that it is 'repugnant to fundamental notions of what is
decent and just in the State where enforcement is sought.'"
Ackermann, supra, 788 F.2d at 841 (quoting Tahan, supra, 662
F.2d at 864). "The standard is high and infrequently met."
Ackermann, supra, 788 F.2d at 841. "Only in clear cut cases
ought it avail defendant." Tahan, supra, 662 F.2d at 866 n. 17.
This argument is essentially nothing more than a restatement
of SMLA's due process argument. As noted with respect to that
argument, "[t]he courts are not free to refuse to enforce a
foreign right at the pleasure of the judges, to suit the
individual notion of expediency or fairness. They do not close
their doors unless help would violate some fundamental
principle of justice, some prevalent conception of good morals,
some deep-rooted tradition of the common weal." Loucks, supra,
224 N.Y. at 111, 120 N.E. 198. For the same reasons the Court
found SMLA's due process argument unpersuasive, it rejects that
argument when dressed in the garb of a concern for public
Moreover, although this Court will enforce the Judgment on
the aforementioned grounds, another, more elementary reason for
rejecting SMLA's arguments exists. Having carefully reviewed
the text of the Judgment, the Court must reject SMLA's basic
premise: that is, that the Paris Court
of Appeals necessarily based its holding upon the existence of
Referring to SMLA, the Judgment reads: "[I]t behooved these
professional intermediaries and they alone, as it is customary,
to undertake the necessary verifications with the duly
appointed literary agent of Clark HOWARD, if need be with the
Copyright Office in Washington and with the Registry of the
National Film Center which would have revealed to them the
registrations going back a number of years. . . ." Translation
of Judgment, attached as Exhibit 2 to Glasgow Affidavit, at 18.
The phrase "as is customary" is clearly a parenthetical clause.
The French decree remains as clear and strong with these words
deleted. SMLA was found liable because of its failure to
exercise reasonable precaution in connection with its role in
the sale of literary rights. The presence of mere
dictum is far too thin a reed on which to hang an argument for
non-enforcement of a foreign judgment, especially when that
argument is premised on due process and public policy grounds.
Accordingly, plaintiffs' motion for summary judgment on the
first, third and fourth causes of action, enforcing the
Judgment as to Pariente's claims,*fn16 is granted.
IV. Interest on the Judgment
The complaint in this action demands interest on the Judgment
at the rate of 9.5% per annum from November 13, 1987 through
July 2, 1989, at the rate of 14.5% per annum from July 3, 1989
through September 6, 1989, and at the rate of 12.82% per annum
from September 7, 1989 until the present. However, plaintiffs
do not discuss this issue in their moving papers. SMLA argues,
in a footnote, that to the extent the Judgment is enforced by
this Court, the interest rate to be applied would be the New
York statutory rate of 9% per annum. CPLR § 5004. Because this
issue has been insufficiently briefed, as to both the relevant
law and facts, the Court will not decide it now. Rather, should
plaintiffs seek a judgment rate of interest in excess of the
New York statutory rate, plaintiffs shall so inform SMLA and
the Court, and the parties shall include a full discussion of
this question in their supplemental briefs.
The parties' cross-motions are granted in part, and denied in
part, as follows. Plaintiffs' motion for summary judgment is
granted with respect to the first, third and fourth causes of
action. Defendant SMLA's cross-motion for summary judgment is
granted with respect to the second and sixth causes of action,
and is otherwise denied. The parties shall provide supplemental
briefing on the issues of this Court's jurisdiction over
Ander's remaining claims, and the proper judgment rate of
interest to be applied in this case, according to the following
schedule: plaintiffs shall serve and file their supplemental
papers on or before August 23, 1991; SMLA shall serve and file
its opposing papers on or before September 13, 1991;
plaintiffs' reply papers, if any, shall be served and filed on
or before September 20, 1991.