Buckeye Retirement Co., L.L.C., Ltd. v Lee

Buckeye Retirement Co., L.L.C.,Index 101874/06 Ltd. v Lee 2007 NY Slip Op 05166 [41 AD3d 183] Decided on June 12, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 12, 2007
Nardelli, J.P., Williams, Buckley, Catterson, McGuire, JJ.
261
Index 101874/06

[*1]Buckeye Retirement Co., L.L.C., Ltd., Plaintiff-Appellant,

v

William G. Lee, III, Defendant-Respondent.




Vlock & Associates, P.C., New York (Steven Giordano of
counsel), for appellant.
No appearance or brief on behalf of respondent.

Order, Supreme Court, New York County (Faviola A. Soto, J.), entered June 8, 2006, which denied plaintiff's motion for summary judgment in lieu of complaint and dismissed the action, without prejudice, reversed, on the law, with costs, the motion granted and the matter remanded for further proceedings, including a determination of the amount of interest.

In 1990, a default judgment was entered in Florida in favor of plaintiff's predecessor in interest and against defendant in the amount of $8,658.69. In 2006, plaintiff moved, pursuant to CPLR 3213 for summary judgment in lieu of complaint, to domesticate that judgment, and sought interest at the rate of 12% per year. Although defendant did not respond, Supreme Court denied the motion because it could not determine (1) whether there was personal jurisdiction in the underlying Florida default judgment against defendant, a non-resident of Florida; (2) the Florida statute of limitations applicable to the enforcement of judgments; or (3) the basis for New York's personal jurisdiction over defendant, then a Nevada resident.

The Full Faith and Credit Clause of article IV of the United States Constitution requires the courts of New York to enforce judgments rendered in other states, and precludes inquiry into the merits of the judgment (see Fauntleroy v Lum, 210 US 230 [1908]). While lack of personal jurisdiction is a defense to enforcement of a sister state's judgment (see JDC Fin. Co. I v Patton, 284 AD2d 164, 166 [2001]), lack of personal jurisdiction and the statute of limitations are affirmative defenses that are waived unless raised by the aggrieved party (see Yihye v Blumenberg, 260 AD2d 371 [1999], lv denied 93 NY2d 813 [1999] [personal jurisdiction]; McGowan v Hoffmeister, 15 AD3d 297 [2005] [personal jurisdiction]; Fade v Pugliani/Fade, 8 AD3d 612, 614 [2004] [statute of limitations]). Accordingly, Supreme Court should not have raised them sua sponte.

We remand to Supreme Court to calculate the amount of interest, based on the New York rate (see Wells Fargo & Co. v Davis, 105 NY 670 [1887]; De Nunez v Bartels, 264 AD2d 565, 566 [1999]). All concur except Catterson and McGuire, JJ. who concur in a separate memorandum by McGuire, J. as follows:[*2]
McGUIRE, J. (concurring)

I agree that the order appealed from should be reversed, the motion granted and the matter remanded for a determination of the amount of interest. I write separately because I would make clear that we are not deciding the issue of whether, in a proceeding to enforce a foreign judgment, there are circumstances under which a trial court properly may raise sua sponte the issue of personal jurisdiction or statute of limitations. Assuming without deciding that there are such circumstances, at the least there would have to be some basis in the record for raising one or both of these issues. Here, no such basis exists and Supreme Court should not have raised either issue sua sponte.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 12, 2007

CLERK