I.D.R.P., BVBA v Worldwide Diamonds Group, Inc.

[*1] I.D.R.P., BVBA v Worldwide Diamonds Group, Inc. 2005 NY Slip Op 52148(U) [10 Misc 3d 1064(A)] Decided on November 28, 2005 Supreme Court, New York County DeGrasse, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 28, 2005
Supreme Court, New York County

I.D.R.P., BVBA, Plaintiff,

against

Worldwide Diamonds Group, Inc., Defendant.



102997/05

Leland DeGrasse, J.

Plaintiff moves for an order granting summary judgment and the attachment of defendants' assets within the State of New York. Defendant cross-moves for leave to submit an additional memorandum of law in opposition to plaintiff's motion. Plaintiff sues to recover the sum of $211, 919.77 due under a judgment originally registered in the amount of $254, 954. 57 on July 15, 2004 by the Sixth Division of the Commercial Court in the Judicial District of Antwerp, Belgium. The underlying transaction is the sale of diamonds by plaintiff to defendant. CPLR 5302 provides that, except as provided in CPLR 5304, a foreign country judgment is conclusive between the parties and enforceable to the extent that it grants or denies a sum of money. CPLR 5304 (a) (1) provides that a foreign country judgment is not conclusive if the foreign court did not have personal jurisdiction over the defendant. Defendant alleges that the Belgian court lacked personal jurisdiction over it because the Belgian writ was served by mail. The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (20 U. S. T. 361, T. I. A. S. No. 6638 [1969]) is a multilateral treaty designed to "simplify service of process abroad so as to assure that documents are brought to the notice of the addressee in sufficient time" (Reynolds v Koh, 109 AD2d 97 [3rd Dept 1985]). The Hague Convention article 10 provides: "Provided the State of destination does not object, the present

Convention shall not interfere with

(a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination" (reprinted in Fed Rules Civ Pro rule 4 [28 USCA] 2005 supp at 129).

In Reynolds, the Appellate Division, Third Department held that the sending of a summons and complaint by registered mail, return receipt requested did not satisfy the service requirements [*2]of the Hague Convention so as to gain personal jurisdiction (Reynolds v Koh,109 AD2d at 98-100). The Court based its conclusion upon the following construction of article 10 (a): "That article 10 (a) refers to send', whereas the Hague Convention repeatedly refers to service' of documents, indicates to us that article 10 (a) was meant to authorize something other than service' in the legal sense, such as the mere transmittal of notices and legal documents which need not be served' in the legal sense" (id. at 99).

The First Department adopted the reasoning of the Reynolds Court in Sardanis v Sumitomo Corporation (279 AD2d 225, 229 [2001]). Accordingly, the Belgian judgment is not conclusive by reason of the fact that the Belgian court lacked personal jurisdiction over defendant.[FN1]

The court rejects defendant's argument that Belgium was an inconvenient forum. CPLR 5304 ((b) (7) provides that a foreign country judgment need not be recognized if in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action. The inconvenience of a forum should not be invoked as a basis for nonrecognition of a foreign country judgment "unless New York in an analogous situation would have dismissed the case under its own forum non conveniens doctrine" (Wimmer Canada v Able Tractor & Equip. Co., 299 AD2d 47, 52 [2002]. The doctrine of forum non conveniens articulated in CPLR 327 permits a court to stay or dismiss an action where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert. denied 469 U.S. 1108). The burden rests on the defendant challenging the forum to demonstrate relevant private or public interest factors, which militate against accepting the litigation (id.). Factors to be considered include the burden on the New York courts, the potential hardship to the defendant, and the availability of an alternative forum in which plaintiff may bring suit (id.). Defendant has not met its burden because it merely asserts that "[b]ecause of Worldwide's total absence of activities in Belgium, to defend this action in Belgium would be severely inconvenient for Worldwide." Defendant's conclusory assertion that it was not allowed sufficient time to defend itself in the Belgian proceeding is also unavailing as a ground for nonrecognition of the Belgian judgment (see CPLR 5304 [b][2]).

In all other respects, plaintiff is not entitled to summary judgment. The motion is supported only by the affidavit of plaintiff's New York counsel and the affirmation of plaintiff's Belgian counsel who do not claim to have personal knowledge of the underlying business transaction (see Citibank, N. A. v Joffe, 265 AD2d 291 [1999]). The branch motion by which plaintiff seeks an order of attachment is denied. An order of attachment may be granted where the cause of action is based on a judgment which is entitled to full faith and credit in this State or which qualified for recognition under CPLR Article 53. As noted above the Belgian judgment does not qualify for Article 53 recognition due to the Belgian court's lack of personal jurisdiction over defendant. The Belgian court's lack of personal jurisdiction also disqualifies the judgment [*3]for full faith and credit (see Matter of Farmland Dairies v Barber, 65 NY2d 51, 55 [1985], rearg denied 65 NY2d 924). Plaintiff has not alleged any other ground for attachment. Defendant's cross motion is granted to the extent that its additional memorandum of law has been received by the court. Plaintiff has not been prejudiced thereby. A preliminary conference shall be conducted on January 23, 2006 at 2:00 p. m.

Dated: November 28, 2005

J. S. C.

Footnotes

Footnote 1:It is also noted that the proffered translations of the judgment and affidavit of service by the Belgian process server are not accompanied by the translator's affidavit as required by CPLR 2101 (b).