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Abu Dhabi Commercial Bank PJSC v. Saad Trading

Supreme Court, New York County

May 15, 2012

Abu Dhabi Commercial Bank PJSC, Plaintiff,
v.
Saad Trading, CONTRACTING & FINANCIAL SERVICES COMPANY, Defendant.

Plaintiff: Michael S. Devorkin Allyson R. Albert Golenbock Eiseman Assor Bell & Peskoe LLP

Defendant: Robert F. Serio Gabriel Herrmann Christopher Muller Gibson, Dunn & Crutcher LLP

Shirley Werner Kornreich, J.

In this action for summary judgment in lieu of complaint, plaintiff seeks to collect on a judgment rendered by the High Court of Justice Queen's Bench Division Commercial Court, in the amount of $33, 144, 706.58 (the judgment of $31, 841, 341 plus contractual interest through July 27, 2010) against Saad Trading (Saad). See CPLR §§ 3213, 5303. The English action was for breach of contract. In the contract, the parties submitted to the non-exclusive jurisdiction of the English courts. Defendant did not contest jurisdiction. Moreover, although defendant filed a defense to the English action, its solicitors ultimately withdrew, with consent of the Court, and defendant failed to appear for trial. The court specifically found that defendant was aware of the trial and chose not to appear. Plaintiff proved its case on the merits, and the judgment issued on July 27, 2010, after trial. The judgment was never appealed.

Service in this action was effected in the manner specified in the contract between the parties. [1] Plaintiff now seeks to domesticate and enforce the judgment in New York. Defendant opposes the motion, raising issues of personal jurisdiction and forum non conveniens. The parties agree that no mandatory or discretionary exclusions pursuant to CPLR 5304, the statute governing recognition of a foreign country money judgment, exist here. [2] The court granted plaintiff's motion on the record and stated that this written decision would follow.

Seminal Facts

Plaintiff, Abu Dhabi Commercial Bank PJSC (ADCB) is incorporated under the laws of the United Arab Emirates and does business in Abu Dhabi. Saad is a limited partnership under the laws of Saudi Arabia and does business there. No evidence is before the court indicating that Saad has any contact with New York. Defendant, thus, argues that the court has no personal jurisdiction over Saad, that it would violate due process to grant this motion, and that the action should be dismissed on the ground of forum non conveniens . Plaintiff responds that personal jurisdiction is not necessary to enforce a foreign money judgment and opposes dismissal on the ground of forum non conveniens.

Discussion

The overarching issue in this case is whether in personam jurisdiction is a necessary predicate to recognition of a foreign country money judgment. The only New York State appellate court which has addressed the issue is the Fourth Department in Lenchyshyn v Pelko Elec., Inc., 281 A.D.2d 42 (4th Dept 2001). Accord Milan Indus. v Wilson, Index No. 101242/10 (May 26, 2011)(Tingling, J.). In Lenchyshyn, as here, plaintiffs sought summary judgment in lieu of complaint, seeking recognition of a foreign country judgment. Faced with a Canadian money judgment against a judgment debtor over whom it had no personal jurisdiction, the Lenchyshyn Court held "that the judgment debtor need not be subject to personal jurisdiction in New York before the judgment creditor may obtain recognition and enforcement" of the Canadian judgment. Lenchyshyn, supra at 43. The Court explicitly found that neither due process nor article 53 of the CPLR requires a jurisdictional predicate for recognition of a foreign country money judgment so long as the requirements of article 53 are met. Id. at 47. The Court noted:

In 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 money judgment. [3]

Id. at 49.

Defendant argues that the court should not follow Lenchyshyn. It contends that to do so would violate due process. In support, it cites to a footnote in Shaffer v Heitner, ...


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