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90 A.D.2d 949, 456 N.Y.S.2d 888
Supreme Court,
Appellate Division, Fourth Department, New York. Adamo PORISINI and
Elizabeth Porisini, Appellants, v. Arcangelo J.
PETRICCA, Respondent. Nov. 9, 1982. SUBSEQUENT HISTORY: Appeal Withdrawn by: Porisini v. Petricca, 60 N.Y.2d 612, 1983 WL 212308 (N.Y. Aug. 31, 1983) [**889] COUNSEL: Phillips, Lytle, Hitchcock, Blaine & Huber
by Rebecca Baritot, Buffalo, for appellants. John J. Carney, Buffalo, for respondent. JUDGES: Before DILLON, P.J., and SIMONS, DOERR, MOULE
and SCHNEPP, JJ. MEMORANDUM: Plaintiffs have moved for summary judgment pursuant to CPLR 3213
for a New York judgment recognizing and enforcing a prior default judgment
rendered against defendant in the High Court of Justice, Queens Bench Division,
London, England. The judgment is in the amount of $22,188.65 and represents
sums due plaintiffs for unpaid rent and telephone bills. Defendant’s
answering affidavits raised several defenses but Special Term denied the motion
solely because it found issues of fact on the merits of plaintiffs’
claim and on the jurisdiction of the English court. Having defaulted, however,
defendant may not now challenge the merits of plaintiffs’ claims
collaterally (CPLR 5303). If the High Court of Justice had personal
jurisdiction of him, this court is agreed there was no basis to deny the
motion. Plaintiffs’ judgment was obtained against defendant, an
attorney, after he had been personally served in New York with a summons,
statement of claim and accompanying papers pursuant to an order of the English
court authorizing such service. Plaintiffs alleged in their claim that
defendant and two others rented and occupied an apartment from them in London,
England for an agreed rent but that they failed to pay the rent. Defendant did
not answer or otherwise appear in the action and a default judgment was entered
against him. Foreign country judgments are recognized as a matter of comity or
courtesy and traditionally, New York has been relatively generous in
recognizing them provided the judgment is based upon recognized principles of
jurisdiction and due process. To protect the interests of New York citizens in
foreign states by encouraging reciprocal accommodation in enforcing judgments,
New York enacted CPLR Article 53, [*950] the Uniform Foreign Money-Judgments
Recognition Act in 1970. The statute is said to be expositive of prior New York
case law (see, generally, Siegel, N.Y.Civ.Prac., § 472; 9 Carmody-Wait
2d, § 63:244; 6 Weinstein-Korn-Miller, N.Y.Civ.Prac., ¶
5303.01). Its provisions govern this proceeding. The Act authorizes the recognition of judgments if jurisdiction is
acquired pursuant to the provisions of section 5305. If personal jurisdiction
is acquired in any manner provided in subdivision (a), i.e., personal service
within the foreign state, voluntary appearance, etc., the foreign judgment must
be recognized. None of the provisions of subdivision (a) apply here but that
subdivision is not exclusive. Subdivision (b) of the same section permits the
court to recognize other bases of jurisdiction and New York may, and
appropriately [**890] should, recognize a foreign judgment predicated on any
jurisdictional basis it recognizes in its internal law (see Siegel, Practice
Commentaries, McKinney’s Consolidated Laws of N.Y., § 5305).
That being so, long arm jurisdiction was available to plaintiffs. CPLR
302(a)(4) permits the courts of New York to acquire personal jurisdiction over
a non-domiciliary who “owns, uses or possesses any real property
situated within the state” whether or not the non-domiciliary was
using the property at the time the action was commenced (see Genesee Scrap
& Tin Baling Corp. v. Lake Erie Bumper Plating Corp., 57 A.D.2d 1068, 395
N.Y.S.2d 826; Tebedo v. Nye, 45 Misc.2d 222, 256 N.Y.S.2d 235).
Accordingly, under New York law a similar action for unpaid rent could be
maintained by a New York resident by personal service on a non-domiciliary
former tenant (see Hempstead Medical Arts Co. v. Willie, Sup Ct. Nassau
County, NYLJ 12-9-63, p. 18, col. 6). By parity of reasoning, the jurisdiction
of the English court should be recognized in this case if defendant used
plaintiffs’ apartment. Since he admits in his answering papers that he
was in London at the time complained of and lived in plaintiffs’
apartment, the predicate for personal jurisdiction is established beyond
dispute. The dissenters contend that defendant was only a guest of others
and that those others, not he, attorned to plaintiffs. That indeed might be a
valid defense on the merits if plaintiff had chosen to advance it in the
English courts. Since he did not, he may not challenge the merits of plaintiffs’
claim in this proceeding (see generally, Riehle v. Margolies, 279 U.S. 218, 49 S.Ct.
310, 73 L.Ed. 669). Insofar as the dissenters rely on the quotation from a
Pennsylvania District Court, the court there found personal jurisdiction under
a long arm statute similar to New York’s. Other Pennsylvania courts
have interpreted that state’s long arm statute broadly also to acquire
jurisdiction over non-residents (see Romig v. Ripley Mfg. Corp., 366 Pa. 343, 77
A.2d 360; and see generally, Note, Ownership, Possession and Use of Property as
a Basis of In Personam Jurisdiction, 44 Iowa L.Rev. 374). Defendant contends further that the judgment should be vacated
because it was obtained by fraud (CPLR 5304, subd. b[3] ) and that the New York
courts should, in the exercise of their discretion, refuse to recognize a
judgment on such grounds. The “fraud” claimed by defendant in
his answering affidavit is that plaintiffs have alleged an “oral
agreement (the lease) which never took place.” Defendant also contends
that the tenancy was the subject of a secret written agreement with another, a
Swedish national named Rispoli who now lives in Nigeria and that Rispoli paid
the rent. Neither of those allegations allege fraud and neither is supported by
the accompanying papers. In any event, those allegations also attempt to
challenge the merits of the action and are issues which are foreclosed to the
recognition court once jurisdiction is found (CPLR 5303). Another issue argued
on appeal appears in an affidavit from Rispoli in which he claims that he was
the lessor of the premises and that the lease was part of a fraudulent scheme
by plaintiffs to avoid taxes. His allegations are not adopted by defendant in
his answering affidavit and they present only matters which might result in
avoidance of the lease on public [*951] policy grounds if presented to the
English court. They are not, in our judgment, a basis for New York courts to
deny recognition (see Neporany v. Kir, 5 A.D.2d 438, 173 N.Y.S.2d 146; Schwabe
v. Herzog, 161 App.Div. 712, 146 N.Y.S. 644). Since a valid basis for personal jurisdiction of defendant has
been established by the moving and answering papers before Special Term, and no
grounds for refusing recognition pursuant to CPLR 5304 appear, plaintiffs’
motion for summary judgment should have been granted. We have
considered the other issues raised by defendant and we find no merit to them. Order reversed with costs and motion granted. All concur, except DILLON, P.J., and SCHNEPP, J., who dissent and
vote to affirm, in the following Memorandum: [**891] The purpose of the Uniform Foreign
Country Money-Judgments Recognition Act (CPLR Article 53) is “to make
uniform the law of those states which enact” it and thus to establish
uniformity among the several states in the recognition of such judgments (CPLR
5308). Such uniformity is achieved, of course, where jurisdiction is premised
upon the provisions of subdivision (a) of CPLR 5305. Given the variety of bases
upon which jurisdiction is asserted by sister states, however, the approach
taken here by the majority, if adopted by all the states, would result in a
lack of uniformity which the Act seeks to avoid. It is for that reason that the
discretionary power given the courts to recognize “other bases of
jurisdiction” (CPLR 5305(b)) should be cautiously exercised and the
internal law of a state should not always determine the jurisdictional
predicate for recognition of a foreign judgment. This judgment need not be recognized under the provisions of
article 53 and we disagree that it should be recognized “by parity of
reasoning” pursuant to subdivision (a) of paragraph 4 of CPLR 302.
That section permits our courts to exercise personal jurisdiction over a
non-domiciliary who “owns, uses or possesses any real property
situated within the state.” Although it is true that this action arose
from defendant’s presence in certain premises in England, that should
not end the inquiry. While we would agree that cases arising out of the
ownership or the right to possession of English real estate should be decided
in English courts, we cannot adopt the majority’s conclusion that
plaintiffs’ allegations, which were pleaded in the alternative, i.e.,
that defendant orally agreed to pay either all or one-third of the rent and
other charges, must blindly be accepted as establishing the jurisdictional
basis for recognition of the judgment. “Jurisdiction is grounded on the relationship existing
between the defendant and the realty out of which the cause of action arose at
the time the cause of action arose” (Tebedo v. Nye, 45 Misc.2d 222, 223,
256 N.Y.S.2d 235). It is the absence of such a relationship that defendant puts
in issue in asserting that he had no agreement with plaintiff and that he was
but an intermittent guest of a tenant in plaintiffs’ premises. His
assertions are supported by the tenant whose affidavit appears in the record. While the words “uses or possesses” are not
defined in the statute, it is noted by one commentator that Pennsylvania has
long had a statute similar to CPLR 302 (see McLaughlin, Practice Commentaries,
McKinney’s Consolidated Laws of New York, Book 7B, CPLR C302:25, p.
93). A case decided in that jurisdiction provides the following analysis with
which we agree: “It is not every use that will
justify the city in proceeding under the act. The use of property by a
trespasser, being without right, would not do so; nor would its use as a
permissive crossing, since the users would have no interest in the property.
The same can be said of certain kinds of easements, such as the right of a
telephone company to maintain its poles on the property. And so of guests,
invitees, and licensees. None of these ‘possesses’ the
property, with the right to do so. ‘Use’ must stem from some
form of rightful possession, which contemplates some of the prerequisites of
ownership or control, even if temporary.” (Dubin v. City of
Philadelphia, 34 Pa. D & C 61, 70-71). The only evidentiary showing addressed to the jurisdictional issue
as [*952] framed by the
majority was made here by defendant. We thus conclude that summary judgment was
properly denied. |