Tuesday, November 27, 2018

Enforcing Foreign Judgments in New York: Hague Convention on Service

A lot of the work I handled for the brief time that I handled international matters concerned how rulings in one nation could be enforced in another. Being based out of New York, I thought this would be helpful to those who, like me, find their practice stretching beyond our borders:
Enforcing a foreign judgment in New York can be accomplished depending on the type of foreign judgment, and how you obtained your New York judgment.  The procedure requires an understanding of not only New York law, but international law.  

Recognition of judgments by foreign courts is not automatic in New York a procedure in place must be followed prior to recognition of the foreign judgment. 

The judgment must first be authenticated in accordance with an Act of Congress or the statutes of New York, and filed within 90 days of the date of authentication. An exemplified copy is needed that has been authenticated either through the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and if the nation is not a party to it, through consular legalization.

After the foreign judgment is authentication, a New York court must determine if the the foreign country judgment was rendered by a court which provides impartial tribunals or procedures compatible with due process of law and that the foreign court had personal jurisdiction over the party. All of the grounds for recognition are contained within CPLR 5301 through 5309, which adopts the Uniform Foreign Country Money-Judgments Recognition Act. 

New York has found that these standards are met in judgments from Canada, Mexico, England, Bermuda, Japan, India, Korea, Brazil, France, Germany, Switzerland, Italy, Hong Kong, Belgium, the Netherlands, Spain, Sweden, Denmark, Romania and most developed nations. On the other hand, judgments from Liberia, Iran and Ecuador fail to meet these requirements. 

To meet your burden of proof for recognition,  you must file an affidavit along with the certified copy, stating:

the judgment was not obtained by default in appearance or via a confession of judgment; 

that it is unsatisfied in whole or in part; 

the amount remaining unpaid and that its enforcement has not been stayed; and

the name and last known address of the judgment debtor. 

There is an extra added wrinkle if your foreign judgment is also a default judgment. To obtain recognition of a foreign default judgment, there are a few steps to take in addition to the authentication process outlines.

The easiest avenue is to file a motion for summary judgment in lieu of complaint pursuant to CPLR 3213.  This sets up a summary proceeding designed to determine whether you properly served the defendant in the out-of-state case, whether the court had jurisdiction to hear the case, and whether recognizing the judgment would violate public policy. 

Alternatively, you can bring a new action in a New York court based on the judgment in hand. 

Once a foreign judgment has been domesticated in New York it can be enforced the same as any other New York judgment. 
New York is the "Capital of the World", and attorneys must be ready to service a wide range of clientele - this is just another arrow that all NY practitioners should keep in their quiver.

Gene Berardelli is known as a street-smart attorney with significant experience in civil and commercial litigation, a New York Election Law expert, a host of an award winning conservative talk radio show broadcast on terrestrial and internet radio stations, and the uncle to the greatest nephew in the history of the world.

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