This case is not published in a printed volume and its disposition appears in a table in the reporter.
Law Office of Paul J. Hyams, PLLC, For Defendant: Frankel Abrams, Esqs.
By: Sandor Frankel, Esq. and Sharp Associates, Esqs.
Michael D. Stallman, J.
Plaintiff moves pursuant to CPLR 3213 and CPLR Article 53 to recognize and enforce an Australian money judgment for attorneys' fees and litigation expenses.
Defendant had sued plaintiff in Australia for property damage. Even though defendant won at trial, the Australian court awarded plaintiff attorneys' fees and expenses because plaintiff had offered defendant a pre-trial monetary settlement that exceeded what defendant proved at trial. Although the trial verdict was several hundred Australian dollars less than the settlement offer, the Australian court awarded plaintiff, the ostensible loser at trial, nearly fifteen times more than what defendant, the ostensible winner, had proven at trial. That anomaly raises important questions of comity and public policy.
Defendant, currently a New York resident, bought a racing sailboat in 2000 while residing in Australia. She contracted with plaintiff, an Australian transportation company, to arrange for the shipping of the boat to her in the United States. Defendant received the boat in the United States on June 30, 2001, but realized after it was uncrated that it had been damaged in transit. She sued plaintiff and others in Australia for the damage. In June 2003, as part of the pre-trial proceedings in Australia, plaintiff offered defendant a AU $7,000 settlement but defendant, seeking to do better at trial, turned it down. In August 2004, defendant won AU $6,035 from plaintiff after trial. (Plaintiff's moving Aff. Exh A, Judgment/Order 4 Aug. 2004). However, in accordance with Australian law, the trial judgment also provided that, because defendant's trial award was less than the settlement offer defendant rejected, defendant was responsible for plaintiff's costs including attorney's fees from June 2003 ( Id .) After an ancillary proceeding in which plaintiff proved the amount of litigation costs, a reviewing court adjudged plaintiff's costs to be AU $89,247.53 (id., exhibit B). It is that net judgment amount minus the amount of defendant's entitlement a net of AU $83,212.53 converted without objection to $69,374.28 in U.S. currency which plaintiff now seeks to enforce against defendant by having the court convert it to a New York judgment.
Under CPLR 5303 a conclusive judgment from a foreign country which meets the requirements of CPLR 5302 is enforceable in New York unless one of the factors set forth by CPLR 5304 applies. At issue here is whether plaintiff's judgment is incompatible "with the requirements of due process of law" (CPLR 5304(a)), in which case the New York court must reject the judgment, or "repugnant to the public policy of this state" (CPLR 5304(b)), in which case the court has the discretion to deny recognition.
In opposition to plaintiff's motion, defendant argues that the Australian judgment should not be recognized in New York because it offends due process of law and the public policy of this state to have defendant, the prevailing party in her suit against plaintiff, emerge from the litigation owing plaintiff nearly fifteen times the amount of her recovery.
On this motion, plaintiff "bears the burden of proving that no mandatory basis for non-recognition pursuant to CPLR 5304(a) exists" ( Dresdner Bank AG v. Haque, 161 F.Supp.2d 259, 263 [SDNY 2001]). However, that burden is not onerous.
"CPLR 5304(a)(1) does not demand that the foreign tribunal's procedures exactly match those of New York. Rather, the statute is satisfied if the foreign court's procedures are compatible with the requirements of due process of law" ( CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V.,100 N.Y.2d 215, 222 , cert den 540 U.S. 948 ). "[I]t is well established that mere divergence from American procedure does not render a foreign judgment unenforceable.... 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" ( Pariente v. Scott Meredith Literary Agency, ...