Sung Hwan Co., Ltd. v Rite Aid Corp.

Sung Hwan Co., Ltd. v Rite Aid Corp. 2017 NY Slip Op 04202 Decided on May 25, 2017 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 May 25, 2017
Sweeny J.P., Renwick, Andrias, Manzanet-Daniels, JJ.
3529 112444/01

[*1]Sung Hwan Co., Ltd., Plaintiff-Appellant,

v

Rite Aid Corporation, Defendant-Respondent.

Herzfeld & Rubin, P.C., New York (David B. Hamm of counsel), for appellant.

Morgan, Lewis & Bockius LLP, New York (Stephen Scotch-Marmo and Elizabeth Buechner of counsel), Thomas A. Schmutz, Washington, D.C., of the bar of the District of Columbia, admitted pro hac vice, of counsel, and Michael F. Healy, Washington, D.C., of the bar of the District of Columbia, admitted pro hac vice, of counsel, for respondent.

Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered March 2, 2015, after a nonjury trial, dismissing the complaint, unanimously affirmed, without costs.

In this action pursuant to CPLR article 53 to enforce a foreign money judgment, plaintiff had the burden of establishing jurisdiction (Venegas v Capric Clinic, __ NY3d __, 2017 NY Slip Op 00936 [1st Dept 2017]; Derso v Volkswagen of Am., 159 AD2d 937, 938 [4th Dept 1990]). On the record before us, we cannot conclude that Supreme Court erred in determining that plaintiff

failed to do so. Specifically at issue was whether defendant operated or controlled an ice cream factory owned by a subsidiary that allegedly supplied listeria-tainted ice cream to plaintiff in South Korea. The record does not support a conclusion that Supreme Court erred in determining that defendant did not operate or control the ice cream factory directly or through a subsidiary acting as a "department" of defendant (see Volkswagenwerk Aktiengesellschaft v Beech Aircraft Corp., 751 F2d 117, 120 [2d Cir 1984]). Moreover, neither could apparent authority give rise to jurisdiction over defendant here.

Plaintiff relies upon cases from across the country involving defendant. We have reviewed these cases and find them inapposite. We have also considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 25, 2017

CLERK