Fried v Caracappa

[*1] Fried v Caracappa 2005 NY Slip Op 51562(U) [9 Misc 3d 1115(A)] Decided on September 30, 2005 Nassau District Court Fairgrieve, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 30, 2005
Nassau District Court

Marshall Fried, Plaintiff,

against

Diana Caracappa, Defendant.



165/05



Thomas A. Williams, Esq., Attorney for Defendant

Roe Wallace Esteve Taroff & Taitz, LLP, Attorneys for Plaintiff

Scott Fairgrieve, J.

Defendant moves, pursuant to CPLR Rule 3211 and CPLR § 3018(b), for an order dismissing the complaint on the grounds that the Court has not obtained personal jurisdiction of the defendant, "release" and fraud. Plaintiff's opposition to said motion is by an unsigned attorney affirmation, and therefore, cannot be considered on this motion.

While a sister state judgment is entitled to full faith and credit, it can be made a judgment here only if the court purporting to render the original judgment had power to render such a judgment in the first instance. There is no proof submitted that the California court obtained personal jurisdiction over the defendant. Additionally, fraudulent procurement of a judgment is recognized as a valid ground for a state's refusal to recognize and enforce a sister state's judgment. Defendant claims in her affidavit in support of her motion to dismiss, that plaintiff had agreed to provide to her a "release" from the note sued upon, once she obtained and forwarded to him a signed, hard copy of a promissory note from Jay Weinberg for $25,000.00. Defendant's affidavit set forth the circumstances of the loan: The facts underlying this litigation begin in September of 1998. At that time an individual named Jay Weinberg, who was a mutual acquaintance of me and the plaintiff, was arrested in New York and charged with certain criminal activity. Weinberg did not have sufficient assets or money to post bail and asked plaintiff to lend him $25,000.00 so that he (Weinberg) could post bail.[*2]Plaintiff agreed to do so if Weinberg's sister-in-law, Rosa Weinberg, Susan Abbracciamento (another friend) and I agreed to sign promissory notes that would assure plaintiff of the repayment of the $25,000.00 loan he was making to Jay Weinberg for bail. Rosa Weinberg and Susan Abbracciamento jointly signed a promissory note in the amount of $25,000.00 on September 14, 1998, and I signed a promissory note for $15,000. Thus, plaintiff had promissory notes in the amount of $40,000.00 to "secure" his $25,000.00 loan to Jay Weinberg.Further, plaintiff and I also agreed that, once Jay Weinberg signed a promissory note for $25,000.00, and a hard copy of such note was delivered to plaintiff, plaintiff would deliver to me a fully executed release and I would have no further obligation to plaintiff. Annexed hereto as Exhibit "A" is a copy of the communication from plaintiff to me regarding such agreement.

Defendant claims that the release from Jay Weinberg was given to the plaintiff, but that plaintiff failed to provide the release. Further, it is claimed that plaintiff fraudulently procured the California judgment, by failing to provide that Court with all of the particulars concerning the promised release. A copy of a faxed instruction sheet from plaintiff indicating plaintiff's obligation to provide defendant with a release upon receipt of a hard signed copy of the release from "Jay", is annexed to defendant's moving papers.

On this motion, plaintiff makes no response to defendant's allegations of "release" and fraud, even though defendant attaches a copy of plaintiff's fax to her agreeing to provide her with a release upon her forwarding to him the original note from Jay Weinberg. Defendant annexes proof of having complied with his instructions. No mention of this agreement appears in plaintiff's California complaint, which indicates to this Court that plaintiff procured the California judgment, which he proposes to convert to a New York judgment, by fraud. If a key fact appears in the movant's papers and the opposing party makes no reference to it, he is deemed to have admitted it. ( Laye v Shepard, 48 Misc2d 478, affd 25 AD2d 498; Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 3212:16, p 27).

A judgment of a sister state's court obtained by fraud is not entitled to the protection of the full faith and credit clause (US Const Art IV § 1) of the United States Constitution.(Averbuck v. Averbuck, 270 A.D. 116, 58 NYS2d 392 [1st Dep't 1945]; Prime v. Hinton, 244 A.D. 181, 279 N.Y.S. 37 [1st Dep't 1935]; Overmyer v. Eliot Realty, 83 Misc2d 694, 371 NYS2d 246 [Sup. Ct. 1975]; Yardis Corp. v. Cirami, 76 Misc2d 793, 351 NYS2d 586 [Sup. Ct. 1974]; Falcon Mfg. (Scarborough) Limited v. Ames, 53 Misc2d 332, 278 NYS2d 684 [City Civ. Ct. 1967]; Vendetti v. Vendetti, 16 Misc2d 2, 31 NYS2d 487 [Dom. Rel. Ct. 1941]; In re Nast, 10 Misc2d 133, 166 NYS2d 43 [Sup. Ct. 1957]; Oberlander v. Oberlander, 179 Misc. 459, 39 NYS2d 139 [Dom. Rel. Ct. 1943]; Fairchild, Arabatzis & Smith, Inc. v. Prometco (Produce & Metals) Co., Ltd., 470 F. Supp. 610 [S.D.NY 1979].) Such a judgment may be impeached in New York for fraud in its [*3]procurement,(Gray v. Richmond Bicycle Co., 167 NY 348, 60 N.E. 663 [1901]; Green v. Green, 246 AD2d 627, 669 NYS2d 48 [2d Dep't 1998] [holding that a Tennessee divorce judgment was entitled to full faith and credit in New York, since there was no evidence that the husband engaged in extrinsic fraud in procuring the divorce]; Steinberg v. Metro Entertainment Corp., 145 AD2d 333, 534 NYS2d 995 [1st Dep't 1988] [holding that the plaintiff was entitled to a summary judgment on its cause of action to recover on a final judgment of a Florida circuit court, where the defendant did not allege any extrinsic fraud in the procurement thereof]), and an injunction may issue against its enforcement.(NY Jur. 2d, Judgments §§ 223, 259 NY Jur. 2d, Judgments §§ 223, 259.)

While plaintiff's affirmation in opposition is unsigned and cannot be considered on this motion, a reading of same shows that it does not address defendant's sworn allegations concerning the issues of the "release" or fraud.

CONCLUSION

The Court finds that the defendant has submitted sufficient proof of "release" and extrinsic fraud, sufficient for it to dismiss plaintiff's action. Defendant has established that plaintiff obtained the California judgment by fraud and thus the California judgment is not entitled to be enforced against defendant. The Court further enjoins plaintiff from attempting to enforce the California judgment now or in the future.

Accordingly, plaintiff's action is dismissed.

SO ORDERED:

DISTRICT COURT JUDGE

Dated: September 30, 2005