Matter of Elmezzi

[*1] Matter of Elmezzi 2013 NY Slip Op 51774(U) Decided on September 26, 2013 Sur Ct, Nassau County McCarty III, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2013
Sur Ct, Nassau County

Application of Stephen J. Saft, Lynn Grossman and Alfred LaRosa, Executors of the Estate of Thomas Elmezzi, Deceased, For An Order to Discover Property Withheld.



339363/C



Jeffrey A. Miller, Esq.

Westerman Ball Ederer Miller & Sharfstein, LLP

1201 RXR Plaza

Uniondale, NY 11556 and

Janice MacAvoy, Esq. (attorneys for respondent, Enrique C. Molina)

Fried Frank Harris Shriver & Jacobson, LLP

One New York Plaza

New York, NY 10004-1980

Michael Feigenbaum, Esq. (attorney for petitioners)

John G. Farinacci, Esq.

Jennifer Hillman, Esq.

Ruskin Moscou Faltischek, P.C.

1425 RXR Plaza

East Tower, 15th Floor

Uniondale, NY 11556-1425

John R. Morken Esq. (attorneys for The Thomas and Jeanne Elmezzi Private Foundation)

Farrell Fritz, P.C.

1320 RXR Plaza

Uniondale, NY 11556-1320

Office of the Attorney General

New York State Charities Bureau

120 Broadway

New York, NY 10271-6332

Edward W. McCarty III, J.

This is a motion by the respondent, Enrique Molina (hereinafter "Molina"), for leave to [*2]reargue this court's decision and order dated February 1, 2013 or, in the alternative, for an order granting Molina leave to file and serve an amended answer. In that decision (Dec. No. 27961), this court denied both petitioners' motion for summary judgment and respondent's cross-motion for summary judgment.

Background

The decedent, Thomas Elmezzi, was an employee of Pepsico Corporation for over thirty-five years. He died on October 3, 2005. He was briefly survived by his spouse, Jeanne Elmezzi, who died three days after the decedent. The decedent's will was admitted to probate by this court on January 26, 2006 and letters testamentary issued to Stephen J. Saft, Lynn Grossman and Alfred LaRosa, the petitioners herein. The will provides for a pour over of the decedent's assets into the Thomas Elmezzi Revocable Trust. The trust, in turn, provides for payment of specific bequests with the remainder to the Thomas and Jeanne Elmezzi Private Foundation.

The petitioners allege that Molina possesses property that belongs to the decedent's estate. Specifically, the petitioners allege that the decedent and Molina had a "lifetime business association and friendship" and that the decedent owned stock or an equity interest in the following companies: Bebidas Purificadas de Acapulco, S.A.; Immuebles para la Industria, S.A.; Embotelladora el Sol and REVAMSA; E.M.S.A. Embotelladora Metropolitana, S.A, and its subsidiaries; BEPURA; Grupo Azul; Troika; Industria Refrescos, S.A.; and REFRISA, all of which are Mexican corporations.

The petition further alleges that "in addition to the Mexican Pepsi Bottling Plants, at all times up to and including the day of death of the Decedent, Decedent owned an equity interest held by Molina as Nominee in Pepsi-Gemex, S.A. de C.V., a New York Stock Exchange Company, which through a series of transactions acquired the stock of the Mexican Bottling Plants." According to the petitioners, the Mexican Bottling Plants were merged into a holding company named Troika which subsequently merged into a corporation which became Pepsi-Gemex, S.A. de C. V. and that the decedent's equity interest in Troika transferred to the Pepsi-Gemex shares. In 2002, the Pepsi Bottling Company made a cash tender offer of $1.2 billion to acquire Pepsi-Gemex shares. The petitioners allege that the respondent's share of the proceeds of that sale amounted to approximately $480 million and that through Molina, as nominee, the decedent owned 6% of Pepsi Gemex which amounts to approximately $72 million.

The court's decision dated February 1, 2013 held as follows: "To the extent that respondent's motion and cross-motion are dependent upon the decedent's purported ownership of the stock being null and void and unenforceable under Mexican law, such motions are denied without addressing the merits of such claim. A claim of illegality by reason of foreign law is an affirmative defense that should have been set forth in Molina's answer (CPLR 3018[b]; Brearton v DeWitt, 252 NY 495, 500 [1930]; see also CPLR 3016[e] ["when a ... defense is based upon law of a foreign country ..., the substance of the foreign law relied upon shall be stated...."]). The CPLR specifically states that specified defenses, including illegality, are matters which "would be likely to take the adverse party by surprise or would raise issues of fact not appearing upon the face of the prior pleading..." (CPLR 3018[b]). The general rule is that affirmative defenses are deemed waived if not raised in the pleadings, though such waiver can be retracted by amendment of the answer (Surlak v Surlak, 95 AD2d 371, 383 [2d [*3]Dept 1983])."

Reargument

Motions for leave to reargue are governed by CPLR 2211. A motion for leave to reargue is based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion (CPLR 2211 [d] [2]). It is a basic principle that a movant on reargument must show that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision (Andrea v E.I. duPont de Nemours & Co., 289 AD2d 1039 [4th Dept 2001]; Bolos v Staten Island Hosp., 217 AD2d 643 [2d Dept 1995]; Schneider v Soloway, 141 AD2d 813 [2d Dept 1988]). A motion to reargue is not to be used as a means by which an unsuccessful party is permitted to argue again the same issues previously decided (William P. Pahl Equipment Corp v Kassis, 182 AD2d 22 [1st Dept 1992]; Pro Brokerage v Home Ins. Co., 99 AD2d 971 [1st Dept 1984]). Nor does it provide an unsuccessful party with a second opportunity to present new or different arguments from those originally asserted (Giovanniello v Carolina Wholesale Off. Mach. Co., Inc., 29 AD3d 737 [2d Dept 2006]; Gellert & Rodner v Gem Cmty. Mgt., 20 AD3d 388 [2d Dept 2005]; Pryor v Commonwealth Land Title Ins. Co., 17 AD3d 434 [2d Dept 2005]; Amato v Lord & Taylor, Inc., 10 AD3d 374 [2d Dept 2004]; Frisenda v X Large Enters., 280 AD2d 514 [2d Dept 2001]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]). Nevertheless, it is well settled that a motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision (Peak v Northway Travel Trailers, Inc., 260 AD2d 840 [3d Dept 1999]). Additionally, even in situations where the criteria for granting a reconsideration motion are not technically met, courts retain flexibility to grant such a motion when it is deemed appropriate (Loris v S & W Realty Corp., 16 AD3d 729, 730 [3d Dept 2005]).

Molina now argues that the court misapplied controlling principles of law in analyzing his argument that petitioners' claims are barred by several Mexican laws. Specifically, Molina argues that the court incorrectly concluded that Molina was required to assert the Mexican laws which he now relies upon as an affirmative defense in his answer. Molina contends that the court's decision and order mistakenly ignored and overlooked CPLR 4511 (b) as well as the holding in Edwards v Erie Coach Lines Co. (17 NY3d 306 [2011]), a "controlling and directly on point 2011 Court of Appeals case." Molina states that the Court of Appeals directly held that foreign law does not have to be asserted as an affirmative defense where the party proposing foreign law requests that it be applied and provides notice to the court and other parties. According to Molina, from the very outset of the proceeding, he asserted that Mexican law applied and, thereafter, he detailed the applicable Mexican laws in his summary judgment cross-motion, including annexing an affidavit and a reply affidavit from a "Mexican legal expert." Molina claims that once the relevant Mexican statutes and rulings are analyzed, the court should grant summary judgment in his favor because Mexico had certain constitutional and statutory laws in effect during the relevant time period which restricted the ownership of shares in a Mexican company by non-Mexican individuals. Alternatively, Molina argues that, if the court still concludes that he should have raised the relevant Mexican law as a defense in his answer, he should be permitted to amend his answer. [*4]

The petitioners oppose both the branch of the argument seeking leave to reargue and the branch for leave to amend. Petitioners ague that it is Molina who has misapprehended the law by inaccurately reading the holding in Edwards, and petitioners further point out that Edwards is a motor vehicle accident case where foreign law was applied to loss allocation for foreign defendants, but New York law was applied to American defendants. According to petitioners, the Court of Appeals underwent a "full choice of law analysis" and analyzed the lack of prejudice under those circumstances. They claim that the Mexican law which Molina claims is dispositive of this case cannot be compared to the choice of law issue in Edwards - calculation of damages. Petitioners argue that Molina has waited 5-1/2 years before claiming that Mexican law should apply. They claim that the sole basis of notice is Molina's "one throw away line in his initial motion to dismiss on the grounds of forum non conveniens that Mexican law should apply' without reference to any particular statute or citation." In addition, they claim that Molina later withdrew the forum non conveniens branch of the motion to dismiss. Moreover, Molina's answer, filed after the motion to dismiss, did not include any reference to Mexican law, but instead relied on the defenses of New York's statue of frauds, statute of limitations and common law.

Petitioners claim that Molina did not comply with either CPLR 4511 or CPLR 3108 by failing to plead Mexican law as an affirmative defense and failing to raise Mexican law until his summary judgment cross-motion. Petitioners also argue that Molina acquiesced in the application of New York law based upon his continued failure to raise Mexican law and his pleading of New York law in affirmative defenses and motion practice. According to petitioners, Molina failed to allege Mexican law applied: (i) in his 2008 motion to dismiss; (ii) at the jurisdictional hearing to determine Molina's contacts with New York under a long-arm jurisdictional analysis; (iii) when he withdrew those portions of the motion to dismiss relating to personal jurisdiction and forum non conveniens; (iv) in his answer; or (v) at his deposition in April 2011.

Additionally, petitioners claim they are prejudiced by Molina's "extreme delay" in asserting foreign law because a "key witness," H. Ward Lay, has passed away. Lay, a non-Mexican, had a beneficial interest in one of the Mexican Bottling Plants stemming from $12,000,000 he gave to Molina in 1971. In discovery, Lay produced a "nominee agreement" signed by Molina whereby Molina sold some of his shares to Lay, with Lay having the option to elect to have the shares recorded in the name of another individual. In a later memorandum, Lay states that he and Molina had orally agreed that Molina would act as his nominee. Petitioners argue that "Lay's testimony would be critical in determining what Molina told him about the Mexican law, what Molina said and did regarding the corporation's registration requirements for foreigners, and how, if at all, Molina's arrangement with Lay was related to his arrangement with Elmezzi." Petitioners also ague that Molina has failed to produce requested discovery on the issue of whether or not Molina and his entities complied with Mexican law. Molina, on the other hand, claims that petitioners' failure to depose Lay before his death has no bearing on the issue of Mexican law because a lack of prejudice is not an element under CPLR 4511 (b) and Molina should not be penalized for petitioners' decision.

On the issue of whether Molina should be granted leave to amend his answer, petitioners argue that leave should be denied because of the prejudice to petitioners and the failure to [*5]provide any reasonable excuse for the extended delay. In addition, petitioners argue that leave should not be granted because Mexican law does not apply and, therefore, the proposed affirmative defense is meritless.

Analysis

There are three questions the court must address on the motion for reargument:

1) Did the court disregard CPLR 4511(b) by strictly applying the provisions of CPLR 3016 (e) and CPLR 3018 in denying Molina's cross-motion for summary judgment on the grounds that he failed to plead foreign law as a defense?

2) If so, is the court required to take judicial notice of Mexican law because Molina provided the court with sufficient information to decide foreign law and gave sufficient notice to petitioners?

3) If Molina did not meet the criteria set forth in question 2 above, should the court, in its discretion, take judicial notice of Mexican law?

The crux of Molina's motion for reargument is that the court's prior decision ignored CPLR 4511 (b) and instead relied solely on CPLR 3106 (e). A proper analysis of the issues presented on this motion for reargument requires the court to review the interrelationship among various provisions of the CPLR. CPLR 4511(b) provides as follows:

"(b) When judicial notice may be taken without request; when it shall be taken on request. Every court may take judicial notice without request of private acts and resolutions of the congress of the United States and of the legislature of the state; ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States; and the laws of foreign countries or their political subdivisions. Judicial notice shall be taken of matters specified in this subdivision if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it. Notice shall be given in the pleadings or prior to the presentation of any evidence at the trial, but a court may require or permit other notice.

Thus, CPLR 4511 (b) provides for "judicial notice" of foreign law under certain circumstances. " [J]udicial' notice may, in its broadest sense, be considered to include all methods for informing the court during the course of litigation other than the formal introduction of evidence" (Weinstein-Korn-Miller, NY Civ Prac ¶ 4511.01 [2d ed]). Pursuant to CPLR 4511(b), judicial notice of foreign law is mandatory when the party requests it, furnishes the court with sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it. Where all of these elements are present, the court must take judicial notice of foreign law (Weinstein-Korn-Miller, NY Civ Prac ¶ 4511.03 [2d ed]). In addition, even where these elements are not present, the court, in its discretion, may take such notice of the laws of a foreign country pursuant to the discretion afforded under CPLR 4511 (b). Thus, under CPLR 4511 (b), judicial notice of foreign law will be mandatory where all three elements are present and may be taken "without request" by the court's exercise of its discretion even if the elements are not met.

Deciding the substantive law to be applied in a case is a question for the court and CPLR 4511 is designed as a procedural aid to the court regarding the content of controlling law (Weinstein-Korn-Miller, NY Civ Prac ¶ 4511.01 [2d ed]). Thus, a party requesting the court to [*6]take judicial notice of a matter of law pursuant to CPLR 4511(b) is under an obligation to furnish the court with sufficient information to enable it to comply with the request (Weinstein-Korn-Miller, NY Civ Prac ¶ 4511.04 [2d ed] ). If the court is unfamiliar with the legal system of a foreign country, the court may require experts on foreign law to testify and be cross-examined (Jann v Cassidy, 265 AD2d 873 [4th Dept 1999]; Rawitz v Rawitz, 31 AD2d 832 [2d Dept 1969]; Weinstein-Korn-Miller, NY Civ Prac ¶ 4511.04 [2d ed] ). CPLR 4511 (d) permits the use of certified copies of statutes and printed copies of cases even where formal proof is required (Weinstein-Korn-Miller, NY Civ Prac ¶ 4511.04 [2d ed]). CPLR 4511 (d) provides that "in considering whether a matter of law should be judicially noticed and in determining the matter of law to be judicially noticed, the court may consider any testimony, document, information or argument on the subject, whether offered by a party or discovered through its own research" (Weinstein-Korn-Miller, NY Civ Prac ¶ 4511.04 [2d ed]). On the issue of notice, CPLR 4511 (b) provides that a court must take judicial notice of foreign law if the party requesting it gives the court sufficient notice and notice is given either by the pleadings or "prior to the presentation of any evidence" or by such notice "as the court may require or permit." The burden of giving notice of the intention to rely upon foreign law should be on the party who seeks some advantage from it (Weinstein-Korn-Miller, NY Civ Prac ¶ 4511.06 [2d ed]).

CPLR 3018 (b) provides as follows: "(b) Affirmative defenses. A party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as arbitration and award, collateral estoppel, culpable conduct claimed in diminution of damages as set forth in article fourteen-A, discharge in bankruptcy, facts showing illegality either by statute or common law, fraud, infancy or other disability of the party defending, payment, release, res judicata, statute of frauds, or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated."

CPLR 3106 (e) provides that "[w]here a cause of action or defense is based upon the law of a foreign country . . . the substance of the foreign law relied upon shall be stated." " The object of CPLR 3016 (e) is to provide notice' to the court and adversary of the substance' of any law the pleader might choose to rely on" (Weinstein-Korn-Miller, NY Civ Prac ¶ 3016.16 [2d ed]) "[I]f a party elects to use the pleadings as the vehicle for giving notice, then he must comply with the formalities of CPLR 3016 (e) and state the substance - - as opposed to a mere citation of the law, on the one hand, or a verbatim reproduction of the statue, on the other - - of the foreign law" (Minovici v Belkin, 2013 N Y Slip Op 5618 [2d Dept 2013]; The Bank of New York v Nickel, 14 AD3d 140, 149 [1st Dept 2004]).

This court previously found that Molina failed to plead foreign law under CPLR 3016 (e) because Molina's answer is devoid of any reference to foreign law. Once this court determined that Molina failed to plead Mexican law, and specifically illegality based upon Mexican law as an affirmative defense, this court mistakenly concluded that Molina's failure to plead Mexican law in his answer was fatal to Molina's claim. The court also noted that Molina had not sought leave to amend his answer. [*7]

In Edwards v Erie Coach Lines Co. (17 NY3d 306, 328 [2011]), the Court of Appeals held as follows: "CPLR 4511 (b) vests Supreme Court with discretion to take judicial notice of foreign law prior to the presentation of evidence at trial. This provision states that the court shall take judicial notice of specified matters (which include the laws of foreign countries or their political subdivisions) if a party so requests; furnishes the court sufficient data to enable it to take judicial notice; and advises adverse parties of its intent to ask the court to take judicial notice. This third requirement — notice to adverse parties — must be given in the pleadings or prior to the presentation of any evidence at the trial, but a court may require or permit other notice. . . .""CPLR 3016 (e) . . . provides that where a cause of action or defense is based upon the law of a foreign country or its political subdivision, the substance of the foreign law relied upon shall be stated. But CPLR 3016 (e) must be read together with CPLR 4511 (b). As a result, while obedience to CPLR 3016 (e)'s pleading requirement . . . would seem ipso facto to satisfy the trio of requirements necessary to compel judicial notice under CPLR 4511 (b), omission to plead the foreign law . . . need prove no more fatal, or serious, than any other omission under CPLR 3015 or 3016, and the fact that the court can on its own volunteer to give the foreign law judicial notice under CPLR 4511 (b) should further divest CPLR 3016 (e) of any undue rigidity. Further, we do not detect the complained-of unfairness or prejudice. A split-domicile lawsuit, such as this one, always presents a choice-of-law dilemma where loss-allocation rules conflict. This issue may have lain dormant during discovery, but there was no reason for plaintiffs to assume that it had vanished" (internal quotation marks and citations omitted).

"To construe strictly CPLR 3016 (e) to require the substance' of the foreign law to be pleaded in every case would reverse the direction of these decisions and ignore the provisions of CPLR 4511(b). That section permits a party, in the absence of any pleading, to notify the court and adverse parties of the intention to request the court to take judicial notice of foreign law. A party may use the pleadings to give such notice; but if the party does so, there must be compliance with the provisions of CPLR 3016 (e)" (Weinstein-Korn-Miller, NY Civ Prac ¶ 3016.15 [2d ed]). "The purpose of CPLR 3016(e) is to liberalize the pleading rule so that only the substance of the foreign law' needs to be pleaded when pleading is relied upon to give notice" (Weinstein-Korn-Miller, NY Civ Prac ¶ 4511.05 [2d ed]).

Here, the court's decision characterized Molina's assertion of the applicability of Mexican law as an affirmative defense of "illegality" and relied solely upon the pleading requirements of CPLR 3016 (e). The court did not consider the interrelationship between CPLR 3016 (e) and CPLR 4511 (b) or the Court of Appeals' decision in Edwards. Accordingly, reargument is granted.

Having granted reargument, the court must determine whether it must take judicial notice of Mexican law under the mandatory provisions of CPLR 4511 (b).

As stated previously, judicial notice of foreign law will be mandatory if the party "furnishes the court sufficient information to enable it to comply with the request, and has given [*8]each adverse party notice of his intention to request it" (CPLR 4511 [b]). CPLR 4511 (b) also sets forth how and when notice may be given. The notice required in order for judicial notice to be mandatory is that notice must "be given in the pleadings or prior to the presentation of any evidence at the trial."

Concerning the issue of notice, petitioners argue that Molina did not give adequate notice because of his alleged five and one-half year delay in raising foreign law and the prejudice that will result on account of such delay. Molina argues that there was, in fact, no such delay and points to instances during the course of the litigation when the petitioners were made aware that Molina intended to rely upon foreign law. Regardless of whether Molina in fact raised Mexican law prior to his cross-motion for summary judgment, CPLR 4511(b) makes it clear that notice may be given prior to the presentation of any evidence at trial. In connection with his cross-motion filed in December 2011, Molina submitted the "Mexican Law Affidavit of Luis Carlos Felipe Davalos Mejia" and the "Mexican Law Reply Affidavit of Luis Carlos Felipe Davalos Mejia." These documents, which were presented prior to trial, were sufficient to put petitioners and the court on notice of Molina's intention to rely upon Mexican law regardless of whether there was notice prior to this point (see Dresdner Bank AG v Edelmann, 129 Misc 2d 686 [Sup Ct, New York County 1985, affd 117 AD2d 1024 [1st Dept 1986]] [where plaintiff had annexed copies of the pertinent statutes as well as their interpretation under German law to its motion for summary judgment, the court held that plaintiff had adequately notified both the court and the defendant that it intended to request the court to take judicial notice of the applicable German law; under these circumstances, the court held that the plaintiff need not amend its complaint to set forth the substance of the law"]). Indeed, in response to the submission of these documents, petitioners submitted an affidavit from their own expert on Mexican law. Also, while the Court of Appeals in Edwards did note that there was no "unfairness" or "prejudice" in that case by allowing foreign law to be raised, the court did not impose an additional requirement under CPLR 4511 (b) of lack of prejudice. In fact, the Court of Appeals specifically referred to the "trio of requirements" under CPLR 4511 (b).

In addition, for judicial notice of Mexican law to be mandatory, Molina must also have provided the court with "sufficient information" to comply with his request. Accordingly, the court must determine whether the Mexican Law Affidavit and Mexican Law Reply Affidavit constitute "sufficient information."

The Mexican Law Affidavit was submitted by Carlos Felipe Davalos Mejia (hereinafter "Mejia"), an attorney at law licensed to practice in Mexico since May 1977. He states that he was asked by petitioners' counsel to respond to three specific questions "based on [his] experience and knowledge." Mejia recites that he is knowledgeable about the "foreign investment laws of Mexico" and further recites his qualifications and attaches his curriculum vitae as an exhibit thereto. He further states that his answers to the questions "are based on Statutes and Rulings that are and/or were public, enforceable and clear, which do not need academic speculation." Annexed to the affidavit are full copies of relevant statutes and rulings, which are provided in Spanish without certified English translations. In his affidavit, Mejia quotes various excerpts of the statutes and rulings in the English language. He states that he has "reviewed the English translations of the provisions and materials quoted in this expert report and to the best of [his] knowledge they are accurate." With respect to the Reply Affidavit, Mejia [*9]recites that "the relevant Statutes and Rulings and the translations of those Statutes and Rulings are annexed as exhibits to the First affidavit."

CPLR 2101(b) provides that if a text in a foreign language is used, an English translation and an affidavit of the translator must accompany the pleading. In Reyes v Arco Wentworth Management Corp. (83 AD3d 47 [2d Dept 2011]), the Second Department held that the absence of a translator's affidavit rendered the witness's English affidavit facially defective and inadmissible. The court held as follows:

"This court has held that the absence of a translator's affidavit, required of foreign-language witnesses, renders the witness's English-language affidavit facially defective and inadmissible (see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902, 850 NYS2d 201 [2008]). The requirement of CPLR 2101(b) that affidavits of non-English-speaking witnesses can be accompanied by a translator's affidavit setting forth the translator's qualifications and the accuracy of the English version submitted to the court makes sense. Summary judgment is a drastic remedy made in lieu of a trial which resolves the case as a matter of law (see Andre v Pomeroy, 35 NY2d 361,364, 320 NE2d 853, 362 NYS2d 131 [1974]). Parties opposing a motion for summary judgment are required to proffer evidence that is in admissible form, with rare exceptions not applicable here. A witness at trial would not be permitted to testify in a foreign language, or to proffer documents in a foreign language, without the benefit of a sworn English-language translation (see Quispe v Lemle & Wolff, Inc., 266 AD2d 95, 96, 698 NYS2d 652 [1999]; cf People v Watkins, 12 AD3d 165, 166, 786 NYS2d 133 [2004], and there is no valid reason why a more relaxed evidentiary standard should govern summary judgment applications. Accordingly, the plaintiff's English-language affidavit, without a corresponding affidavit from a qualified translator, cannot be considered in opposition to Ramapo's motion" Reyes v Arco Wentworth Management Corp. (83 AD3d 47, 54 [2d Dept 2011]).

It is clear that "[u]nder CPLR 2101(b) each paper served or filed shall be in the English language and where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his or her qualifications and that the translation is accurate" (Nat'l Puerto Rican Day Parade, Inc. v Casa Publications, 79 AD3d 592, 594 [1st Dept 2010]).

In Nat'l Puerto Day Parade, the plaintiffs' verified complaint set forth in English the alleged defamatory words from each of 19 articles that appeared in a Spanish-language weekly newspaper. The actual Spanish-language articles alleged to be libelous and two translator affidavits from a translation agency were attached. The signed affidavits recited that the translators were "qualified professional translators" and the translations were "an accurate and complete rendering of the content of the original document." The defendants argued, as a basis for their motion to dismiss certain causes of action, that the plaintiffs failed to translate the articles in their entirety. The court disagreed and found that the statute did notrequire a "complete translation." The court found that the certification, which was done by a professional translator competent in both languages, was sufficient. The court also noted that there was no claim that the translation was inaccurate.

[*10]Here, the affidavit fails to provide complete translations of the Mexican laws and rulings annexed and, instead, incorporates selective excerpts from the statutes and rulings, without any explanation as to the meaning or context of the entire relevant statute or ruling. Mejia does not state that he is a certified translator and fails to affirm that the translations of the limited excerpts relied upon by him are in fact accurate, but rather states that "to the best of [his] knowledge they are accurate." His curriculum vitae states only that he "[r]eads, writes and speaksSpanish, English and French." Moreover, petitioners contend that their expert, as detailed in his affidavit, states that Mexican law does not prohibit the arrangement entered into between Molina and Elmezzi. Despite Molina's attempt to suggest that a conflict does not exist between his expert and petitioners' expert, the petitioners clearly state that they dispute the conclusions reached by Molina's expert regarding Mexican law. In addition, the court also notes that Molina posed very structured questions to Mejias in the reply affidavit apparently intended to obfuscate petitioners' assertion that there is a conflict in Mexican law. The circumstances here are distinguishable from the facts in Nat'l Puerto Rican Day Parade, Inc. v Casa Publications (79 AD3d 592 [1st Dept 2010]) where the lack of complete translations of the entire articles at issue was not fatal. Here, the court cannot grasp a full understanding of the asserted Mexican law, or even determine if it is applicable.

For all the foregoing reasons, the court finds that Molina has failed to provide the court with sufficient information concerning Mexican law. As a result, the court is not mandated to take judicial notice of Mexican law under CPLR 4511 (b).

Even where the requirements for mandatory judicial notice have not been met, the court, in its discretion, may take judicial notice of foreign law. The court, however, for the reasons articulated above (absence of certified translations of the entire statutes and rulings and the disputed interpretations of the experts) will not take judicial notice of Mexican law here (see Petition of Petrol Shipping Corp., 37 FRD 437 [SDNY 1965], affd 360 F2d 103 [2d Cir 1966] [holding that, under New York law, where judicial notice was requested of Greek law that was set out in a memorandum prepared only by counsel who was presumably not an expert in Greek law, the court could exercise its discretion to refuse to take judicial notice "in view of the difficulties of the language, the insubstantial assistance provided by counsel, and the court's unfamiliarity with the Greek legal system"]).

In some instances where there has been a complete failure to prove foreign law, the court may proceed on the assumption that foreign law accords with the New York law on the subject (Stein v Siegel, 50 AD2d 916 [2d Dept 1975]; Bank of NY v Nickel, 14 AD3d 140 [1st Dept 2004]) or that the party has acquiesced in the application of foreign law (id. at 149). Here, however, there has not been a complete failure to prove foreign law which would justify a finding that Molina has acquiesced in the application of New York law. Instead, in the absence of taking judicial notice, the court will direct that formal proof of foreign law be offered at the trial (Cohen v Gilbert, 12 AD2d 301 [1st Dept 1961]; Ackermann v Union Bank of Switzerland, 193 Misc 210 [Sup Ct, New York County 1948]).

By asking the court to take judicial notice of Mexican law, Molina has proceeded on the assumption that Mexican law applies. Under the court's prior decision, the court did not need to address the question of whose law applied because the court held, albeit incorrectly, that Molina essentially waived the right to assert Mexican law because he failed to raise Mexican law in his [*11]answer. Now that the court has determined that the failure to plead Mexican law was not fatal, the court must engage in a choice of law analysis to determine which jurisdiction's law applies - Mexico or New York. "It is well established that the first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved. Where no conflict exists the law of the forum state where the action is being tried should apply. A conflict exists if there are relevant substantive differences that could have a significant impact on the outcome of the case" (Del Carmen Onrubia de Beeck v Costa, 39 Misc 3d 347, 358 [Sup Ct, New York County 2013] [internal citations and quotation marks omitted]).

It has not been established that a conflict exists between the laws of New York and the laws of Mexico on the claims asserted by petitioners. In fact, petitioners argue that the Mexican laws relied upon by Molina do not even apply because the cause of action is equitable in nature. Molina disagrees, arguing that Mexican law applies because the action is based in contract. The court requires formal proof, including expert testimony on Mexican law, to determine if there is any discrepancy between Mexican and New York law on the matter, which shall be presented on November 4, 2013, the date previously selected for the trial to begin. If it is determined that such a discrepancy exists, the court will engage in a choice of law analysis in accordance with the general rule enunciated by the Court of Appeals with respect to such conflicts in Indosuez Int'l Fin. B.V. v National Reserve Bank: "New York choice of law principles require a court to apply the law of the state with the most significant relationship with the particular issue in conflict (see Zeevi & Sons v Grindlays Bank, Ltd., 37 NY2d 220, 226-227, 371 NYS2d 892, 333 NE2d 168 (1975), cert. denied. 423 U.S. 866, 96 S. Ct. 126, 46 L. Ed. 2d 95 ["(T) he rule which has evolved clearly in our most recent decisions in that the law of the jurisdiction having the greatest interest in the litigation will be applied and that the facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict" (internal citations and quotations omitted)]; Restatement Restatement [Second] of Conflict of Laws 188 [1]; 292 [1])" (Indosuez Int'l Fin. B.V. v National Reserve Bank, 98 NY2d 238, 244 [2002]).

Accordingly, based upon the above, the court need not address the branch of Molina's motion seeking leave to amend his answer.

The court adheres to its original decision denying the motion for summary judgment and the cross-motion for summary judgment.

This constitutes the decision and order of the court.

Dated: September 26, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court