Bernardo v Lopez

[*1] Bernardo v Lopez 2013 NY Slip Op 51521(U) Decided on September 5, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2013
Supreme Court, Kings County

Lina Q. Bernardo, Plaintiff-Judgment Creditor,

against

Ma. Cecilia Y. Lopez, a.k.a. Cecilia Y. Lopez a.k.a. Maricel Y. Lopez a.k.a. Maricel Lopez a.k.a. Ma. Cecilia L. Ramos a.k.a. Maricel L. Ramos, Defendant-Judgment Debtor.



30572/10



Plaintiff Attorney: David P. Polo, Esq., 421 Seventh Avenue, Suite 904, New York, NY 10001

Defendant Attorney: Jose Luis Ongay, Esq., 55 Overlook Terrace, One H, New York, NY 10033

David I. Schmidt, J.

Upon the foregoing papers, Lina Q. Bernardo (plaintiff) moves for an order holding Ma. Cecilia Y. Lopez, also known as Cecilia Y. Lopez, Maricel Y. Lopez, Maricel Lopez, Ma. Cecilia L. Ramos or Maricel L. Ramos, (defendant) in civil contempt of court and fining or imprisoning her accordingly. Defendant cross-moves "to Correct the Amount of Debt in the Judgment . . . filed and served via overnight mail on January 3, 2013."

Background

(1)

This dispute arises, originally, out of a debt action between plaintiff and defendant in the Republic of the Philippines. Plaintiff and defendant, in the course of litigation in that nation, completed a May 18, 2004 document titled "Motion to Approve Compromise Agreement" (the Compromise Agreement). This document stated, initially, that defendant "is indebted to [plaintiff] for FOUR HUNDRED FIFTY THREE THOUSAND NINE HUNDRED which is the subject matter of this case and other obligations all totaling to ONE MILLION THREE HUNDRED FIFTY-SIX THOUSAND TWO HUNDRED NINETY-FIVE PESOS AND SIXTY-TWO CENTAVOS (P [*2]1,356,295.62)." The Compromise Agreement, which both parties signed, detailed a payment plan by which defendant could satisfy her debt with plaintiff and concluded by stating "WHEREFORE, it is most respectfully prayed of this Honorable Court that the foregoing Compromise Agreement be APPROVED and that a compromise judgment be issued in accordance therewith."

The Municipal Trial Court of Silay City (the Philippine Court), however, issued a decision and order the following week, on May 25, 2004, which acquitted defendant of charges under the Philippine "Bouncing Checks Law," but nonetheless found defendant civilly liable to plaintiff. The Philippine Court thus ordered defendant to pay plaintiff "the amount of P450,000.00 plus a legal rate of interest . . . and the amount of P3,900.00 plus a legal rate of interest from the time of her receipt of letter of demand dated July 22, 2002 . . . until fully paid." (See People v Lopez, Crim. Case Nos. 27879-C, 27880-C [Mun Trial Ct, Silay City, May 25, 2004] [Phil].)

(2)

This court, on February 1, 2012, ordered, on consent, "that the compromise foreign money judgment dated May 18, 2004, be recognized and enforceable as a New York Judgment" (the February 2012 Order). Plaintiff thereafter docketed the February 2012 Order as a judgment.

(3)

Plaintiff now moves to hold defendant in civil contempt of court. Plaintiff asserts that, on July 31, 2012, she sent defendant, by certified mail, an information subpoena with a restraining notice and a questionnaire, pursuant to CPLR 5224 (a) (3). Plaintiff contends that defendant, instead of answering the subpoena, rejected and returned it without replying to the questionnaire. Plaintiff recounts that she re-sent the subpoena with restraining notice and questionnaire on August 17, 2012 with a warning that defendant could be held in contempt for failing to answer. Plaintiff asserts that defendant still has not responded to either subpoena. Plaintiff urges that defendant's conduct has prejudiced plaintiff's rights and that punishment by fine and imprisonment would be appropriate.

(4)

Defendant cross-moves "to Correct the Judgment . . . on the basis that this action is controlled by law applicable to enforcing a Foreign Judgment pursuant to the Uniform Foreign Country Money Judgments Recognition Act." She contends that the Philippine Court never reduced the Compromise Agreement to a judgment, and instead issued the May 25, 2004 judgment against defendant for only P453,900. Accordingly, defendant argues she is liable only for that amount. Defendant additionally urges that she has already made payments to plaintiff totaling $11,427.81, which must reduce the judgment [*3]against her, and she includes copies of receipts of various payments to support this claim.[FN1] Defendant characterizes plaintiff's and plaintiff's attorney's representations in the request to docket the February 2012 Order as an attempt "to collect an amount that they know is dramatically in excess of the amount of the Philippine Judgment," and she argues that "[t]he Court can only award Plaintiff an amount according the Philippine Judgment plus interest minus any payments already made by Defendant."

(5)

Plaintiff maintains, in opposition, that the February 2012 Order is final, and thus may not be reopened. She urges that defendant includes no proper affidavit supporting her cross motion and that defendant is estopped from contradicting her prior position. Plaintiff further argues that the court lacks the power to substantively amend its prior orders.

Plaintiff additionally contends, in a supplemental opposition, that defendant fails to show any proper basis for relief from the February 2012 Order under CPLR 5015. Plaintiff argues that CPLR 5019 limits the court's power to amend prior decisions to "clerical errors, mistake or irregularity [sic], not on substantial matters." She further asserts that defendant's attorney referred to the Compromise Agreement as "the parties' settlement agreement x x x approved by the Court in the Philippines" in a prior motion to dismiss, and plaintiff therefore contends that defendant is estopped from now arguing that the Compromise Agreement was not approved by the Philippine Court.

Discussion

(1)

CPLR 5015 (a) permits, upon a motion, vacating a judgment or order on grounds of (1) excusable default, (2) newly discovered evidence, (3) fraud or misrepresentation, (4) lack of jurisdiction or (5) reversal or modification of an underlying order. These grounds, however, "are neither preemptive nor exhaustive" (Ruben v American & Foreign Ins. Co., 185 AD2d 63, 67 [1992]; see also Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; Town of Warwick v Black Bear Campgrounds, 95 AD3d 1002, 1002 [2012]). Consequently, "a court retains its discretionary power to vacate its own judgment for sufficient reason and in the interests of substantial justice" (Katz v Marra, 74 AD3d 888, 890 [2010] [internal quotation marks omitted], appeal dismissed 15 NY3d 837 [2010]; see also Woodson, 100 NY2d at 68; Town of Warwick, 95 AD3d at 1002). Such inherent power to vacate applies particularly to judgments resulting from mistake (see O'Brien v O'Brien, 88 AD3d 775, 777 [2011]; Block v Block, 153 AD2d 601, 603 [1989]; cf. Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d 739, 742 [1984] ["(a) court's inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through (fraud,) mistake, inadvertence, surprise or excusable neglect'" (second alteration in original)], quoting Ladd v Stevenson, 112 NY 325, 332 [1889]).

Here, it is clear that the February 2012 Order recognizing the Compromise Agreement as an enforceable judgment was the product of inadvertent mistake. That order should have, [*4]instead, recognized the May 25, 2004 decision and order of the Philippine Court as an enforceable judgment, since that decision and order is the only proper foreign country judgment (see CPLR 5301 et seq.) that the parties have presented. Consequently, the February 2012 Order must be vacated and a new order must issue recognizing the May 25, 2004 decision and order as an enforceable judgment.

(2)

Finding defendant in contempt for failing to comply with plaintiff's attempts to enforce a judgment that is now vacated would be inequitable, and plaintiff's contempt motion will thus be denied. Defendants should take note, however, that failure to comply with information subpoenas and other valid enforcement procedures stemming from the judgment herein will result in an appropriate penalty. Accordingly, it is

ORDERED that plaintiff's contempt motion is denied in its entirety; and it is further

ORDERED that defendant's cross motion "to Correct the Amount of Debt in the Judgment" is granted to the extent that this court's February 1, 2012 order is vacated, and that cross motion is otherwise denied; and it is further

ORDERED that the May 25, 2004 decision and order of the Philippine Municipal Trial Court of Silay City in the action People v Lopez, Criminal Case Numbers 27879-C and 27880-C, is recognized as a foreign country judgment for a sum of money, enforceable by plaintiff against defendant for 453,900 Philippine pesos, with interest from July 22, 2002 through payment, pursuant to CPLR 5001, 5002, 5003 and 5004, less any amount previously paid by defendant.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: The receipts appear to indicate that defendant made payments to plaintiff totaling close to P500,000. The poor quality of some receipt copies makes an exact amount impossible to attain at this juncture.