1996 WL 33664485 (2nd Cir.)

For opinion see 104 F.3d 352

United States Court of Appeals, Second Circuit.

CANADIAN IMPERIAL BANK OF COMMERCE, Plaintiff-Appellee,

v.

SAXONY CARPET COMPANY, INC., Defendant-Appellant.

No. 95-9139.

June 11, 1996.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Appellant's Brief

Abraham & Silver, Attorneys for Defendant-Appellan 500 Fifth Avenue New York, NY Ioiio (212)768-7060

TABLE OF CONTENTS

TABLE OF AUTHORITIES ... (i)

PRELIMINARY STATEMENT ... 1

JURISDICTIONAL STATEMENT ... 2

STATEMENT OF QUESTIONS PRESENTED ... 3

STATEMENT OF FACTS ... 3

PROCEDURAL HISTORY OF THE WITHIN ACTION ... 8

SUMMARY OF LEGAL ARGUMENTS ... 13

ARGUMENT ... 16

I THE COURT BELOW IMPROPERLY DENIED APPELLANT'S MOTION TO DISMISS THIS ACTION ... 16

II THE COURT BELOW ERRED IN GRANTING APPELLEE'S CROSS-MOTION FOR SUMMARY

JUDGMENT ... 17

A. Appellant's Visit to Ontario Cannot Subject It to Personal Jurisdiction in Quebec ... 19

B. The Agreements Relied Upon by the Court Below in Finding Personal Jurisdiction Were Made In New York ... 21

(i) The Prior Agreements Did Not Give Rise to the Quebec Action ... 21

(ii) The Prior Agreements Were Made In New York ... 23

C. The Court Below Improperly Considered ELITE'S Activities in the Foreign Forum ... 26

D. The Visit to Quebec by Appellant's Principals Has No Nexus to the Transaction sued Upon ... 29

E. The Court Below Improperly Resolved Issues of Fact As to the Nature of Appellant's Visit ... 34

III APPELLANT CAN COLLATERALLY ATTACK THE QUEBEC JUDGMENT ... 36

A. New York is a More Appropriate Forum to Litigate Appellee's Claim on- the Receivable ... 36

B. The Record Establishes that Appellant Has Meritorious Defenses ... 37

CONCLUSION ... 38

TABLE OF AUTHORITIES

Ackerman v. Levine, 788 F. 2d 830 (2nd Cir., 1986) ... 18, 34

Advanced Cardiovascular Systems. Inc. v. Scimed Life Systems. Inc., 988 F. 2d 1157 (Fed Cir., 1993) ... 17

A. I. L. Div. of Cutler-Hammer. Inc. v. Symetric Industries. Inc., 360 F. Supp. 1138 (E. D. N. Y., 1973) ... 30, 31

Bazak Int'l Corp. v. Mast Industries, Inc., 73 N. Y. 2d 113, 538 N. Y. S. 2d 503 (1989) ... 24, 25

Beacon Enterprises. Inc. v. Menzies, 715 F. 2d 757 (2nd Cir., 1983) ... 18, 21, 34

Benjamin Sheridan Corp. v. Benjamin Air Rifle Co., 827 F. Supp. 171 (W. D. B. Y., 1993) ... 22, 26

Blanco v. Banco Industrial de Venezuela, 997 F. 2d 974 (2nd Cir., 1993) ... 37

Estate of Bruno, 126 A. D. 2d 845, 510 N. Y. S. 2d 770 (2nd Dep't, 1987), Iv. app. den., 69 N. Y. 2d 610, 516 N. Y. S. 2d 1026 (1987) ... 30

City University of New York v. Finalico. Inc., 129 A. D. 2d 494, 514 N. Y. S. 2d 244 (1st Dep't, 1987) ... 24

Civale Corp. v. Colonial Aluminum Sales. Inc., 165 A. D. 2d 805, 564 N. Y. S. 2d 52 (1st Dep't, 1990), Iv. app den. 77 N. Y. 2d 801, 566 N. Y. S. 2d 586 (1991) ... 25

Clarkson Co., Ltd, v. Shaheen, 544 F. 2d 624 (2nd Cir., 1976) ... 27

Coastal Mart. Inc. v. Coastal Oil Co., 681 F. Supp. 1090 (S. D. N. Y., 1988) ... 33

Colucei & Umans v. 1 Mark, Inc., _A. D. 2d _, 637 N. Y. S. 2d 705 (1st Dep't, 1996) ... 21

Concrete Detailing Services, Inc. v. Thompson Steel Corp., 411 F. Supp. 1021 (S. D. N. Y., 1976) ... 30

Concrete Piper Products Corp. v. Modern Building Materials. Inc., 213 A. D. 2d 1023, 624 N. Y. S. 2d 496 (4th Dep't, 1995) ... 22

Del Fierro v. Pepsico Int'l, 897 F. Supp. 59 (E. D. N. Y. 1995) ... 37

Duncan v. Wohn. South & Co., 201 App. Div. 737, 195 N. Y. S. 381 (2nd Dep't, 1922) ... 25

Firegreen Ltd, v. Claxton, 160 A. D. 2d 409, 553 N. Y. S. 2d 765 (1st Dep't, 1990) ... 34

First Nat'1 Bank & Trust Co. v. Wilson, 171 A. D. 2d 616, 567 N. Y. S. 2d 468 (1st Dep't, 1991) ... 30

Hilord Chemical Corp. v. Riloh Electronics. Inc., 875 F. 2d 32 (2nd Cir., 1989) ... 24, 25

Hvide Marine Int'l. Inc. v. Employer Ins, of Wausau, 725 P. supp. 180 (S. D. N. Y., 1989) ... 29, 37

ICC Primex Plastic Corp. v. LA/ES Laminati Estrust Termplastic. S. P. A., 775 F. Supp. 650 (S. D. N. Y., 1991) ... 33

Int'l Customs Associates v. Ford Motor Co., 893 F. Supp. 1251 (S. D. N. Y., 1995) ... 22, 35

Matter of Estate of Jenkins, 133 Misc. 2d 420, 506 N. Y. S. 2d 1009 (Sur. Ct., Queen's Co., 1986) ... 27

J. E. T. Advertising Associates. Inc. v. Lawn King. Inc., 84 A. D. 2d 744, 443 N. Y. S. 2d 745 (2nd Dep't, 1981) ... 26

Juron & Minzer v. Dranoff & Patrizio, 194 A. D. 2d 402, 598 N. Y. S. 2d 514 (1st Dep't. 1993) ... 30

Keywell Corp. v. Weinstein, 33 F. 3d 159 (2nd Cir., 1993) 24 Krupnick v. Danir. 86 A. D. 2d 623, 446 N. Y. S. 2d 357 (2nd Dep't, 1982) ... 34, 35

Mandel-Mantello v. Treves, 103 Misc. 2d 700, 426 N. Y. S. 2d 929 (Sup. Ct., N. Y. Co. 1980), rev'd. 79 A. D. 2d 569, 434 N. Y. S. 2d 29 (1st Dep't, 1980) ... 17

Manhattan Life Ins. Co. v. A. J. Stratton Syndicate Co., 731 F. Supp. 587 (S. D. N. Y., 1990) ... 29

McGowan v. Smith, 52 N. Y. 2d 268, 437 N. Y. S. 2d 643 (1981) ... 21, 30

McKee Elec. Co. v. Rauland-Borq Corp., 20 N. Y. 2d 377, 283 N. Y. S. 2d 34 (1967) ... 30, 36

Munsell v. La Brasserie Molson Du Quebec Ltd., 623 F. Supp 100 (E. D. N. Y., 1985) ... 26

Pacaroor Beamings. Inc. v. Molon Motorist & Coil. Inc., 102 A. D. 2d 355, 477 N. Y. S. 2d 856 (3rd Dep't, 1984) ... 22, 31

Pariente v. Scott Meredith Literary Agency, inc., 771 F. Supp. 609 (S. D. N. Y., 1991) ... 21

Peter Lisec Glastechnische Industry v. Lenhardt Maschinebau, 173 A. D. 2d 70, 577 N. Y. S. 2d 803 (1st Dep't, 1991) ... 26

Porisini v. Petricca, 90 A. D. 2d 949, 456 N. Y. S. 2d 888 (4th Dep't, 1982) ... 28

Royal Zenith Corp. v. Continental Ins. Co., 63 N. Y. 2d 975, 483 N. Y. S. 2d 993 (1984) ... 36

Savles Biltmore Bleachers, Inc. Soft-Fab Textile Processors. Inc., 440 F. Supp 1010 (S. D. N. Y., 1977) ... 29-30

Schwartz v. Compagnie General Transatlanticrue, 405 F. 2d 270 (2nd Cir., 1968) ... 17

Siedler v. Jacobson, 86 Misc. 2d 1010, 383 N. Y. S. 2d 833 (App. Term, 1st Dep't, 1976) ... 31, 32

Solomon Ltd. V. Biedermant Co., Inc., 177 A. D. 2d 350, 576 N. Y. S. 2d 118 (1st Dep't, 1991) ... 34

In Re Union Carbide Corp. Gas Plant Disaster, 809 F. 2d 195 (2nd Cir., 1987), cert, den. 484 U. S. 871 (1986) ... 21

U. S. Theatre Corp. v. Gunwvn/Lansburgh Ltd., 825 F. Supp. 594 (S. D. N. Y., 1993) ... 29

Victrix S. S. Co. S. A. v. Salen Dry Cargo A. B., 825 F. 2d 709 (2nd Cir., 1987) ... 18

Weiss v. Glemp. 792 F. Supp. 215 (S. D. N. Y., 1992) ... 26

STATUTES

CPLR Art. 53 ... 11, 16, 17, 18, 19

CPLR 302(a) ... 19

CPLR 302(a) (4) ... 28

CPLR 5301 ... 16

CPLR 5303 ... 16

CPLR 5304(a)(2) ... 16

Fed. R. Civ. Proc. 12(b) ... 17

Fed. R. Civ. Proc. I2(b)(l) ... 11, 14, 16

Fed. R. Civ. Proc. 12(b)(2) ... 11, 14, 16

Fed. R. Civ. Proc. 12(b)(6) ... 1

Fed. R. Civ. Proc. 56 ... i

Fed. R. Civ. Proc. 56(b) ... 17

N. Y. U. C. C. 32-201(1) ... 24

N. Y. U. C. C. 32-201(2) ... 24

N. Y. U. C. C. 32-201(3) ... 25, n. 3

Quebec Code of Civ. Proc. § 31 ... 20

28 U. S. C. 1291 ... 3

28 U. S. C. 1332(a) ... 2

OTHER AUTHORITIES

Doing Business in Canada 12. 02(2) (Matthew Bender & Co.,

Inc., 1994) ... 20

Martindale Hubbell, Quebec Lav Digest (R. R. Donnelley

to Sons Co., 1996) ... 20

Siegel, Practice Commentaries. C5301: l, McKinney's Consolidated Laws, Book 73 (West Publishing Co., 1978) ... 18

RELIMINARY STATEMENT

Defendant-appellant SAXONY CARPET CO., INC. ("appellant") appeals from a Judgment (Hon. DEBORAH A. BATTS, U.S.D.C.) entered in the Office of the Clerk of the United States District Court, Southern District of New York, on December 11, 1995.

On October 13, 1995, the Court below issued an Order upholding the validity of a Default Judgment entered in favor of plaintiff-appellee CANADIAN IMPERIAL BANK OF COMMERCE ("appellee") and against appellant in the Superior Court of the Province of Quebec for the District of Montreal (the "Quebec Judgment").

The Court below granted appellee's cross-motion for an Order pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCP") granting summary judgment in its favor sustaining the validity of the Quebec Judgment. The basis of the Order was that the Quebec Court had acquired jurisdiction over the person of the appellant.

The Court below also denied appellant's motion for an Order pursuant to FRCP 12 (b)(6) dismissing the within action to enforce the Quebec Judgment, and it was held that the foreign Judgment may not be collaterally attacked in the Court below. The Clerk was directed to enter a Judgment.

This action arises from a contract that was entered into by appellant and appellee's assignor, ELITE CARPET MANUFACTURING LTD., ("ELITE") in May, 1988. The parties, who had entered into several contracts between 1986 and 1988, negotiated these agreements at appellant's place of business located in New York, New *2 York, and they reached a meeting of the mind on all essential terms in New York. ELITE'S right to receive payment under the May,1988 contract was allegedly assigned to appellee.

The Quebec action sought to recover payment for certain carpets allegedly manufactured by ELITE on appellant's behalf under the May, 1988 contract. Appellant's sole place of business is located in New York, New York and it has no offices, employees property or other minimum contacts in the Province of Quebec. Appellant's only presence in Quebec consisted of a social visit by its principals to ELITE'S manufacturing facilities 1987 which was unrelated to the May, 1988 transaction giving rise to the Quebec action.

Appellee, on the other hand, maintains its United States Headguarters in New York, New York. Thus, it could have readily commenced an action in the New York Courts, but chose to do so in Quebec, notwithstanding that appellant has no minimum contacts with that forum, and most of the essential witnesses are in New York where the underlying agreement was made.

The Quebec Court did not have personal jurisdiction over appellant as it did not "transact business" in that forum. Therefore, the Quebec Judgment is a nullity and it may be collaterally attacked in this action.

JURISDICTIONAL STATEMENT

The Complaint in this action alleges that the Court below has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a) in *3 that appellee is "a banking corporation organized and existing under the laws of Canada" and appellant is a citizen of New York (Appendix ["A."] 14). Although appellee alleges that it maintains offices in Quebec, the pleading contains no allegation as to the location of its principal place of business (A. 14).

This Court has jurisdiction over the within appeal pursuant to 28 U.S.C. § 1291 following the final decision of a District Court (A. 163). A Notice of Appeal was served on November 1, 1995 (A. 165).

The Judgment was entered in the Court below on December 11, 1995 (A. 163). Appellant served a second Notice of Appeal on December 21, 1995.

STATEMENT OF QUESTIONS PRESENTED

1. Did the Court below err in denying appellant's motion to dismiss?

2. Did the Court below err in granting appellee's cross-motion for summary judgment?

3. Did the Court below err in determining that appellant cannot collaterally attack the Quebec Judgment?

STATEMENT OF FACTS

Appellant is a New York corporation that has been engaged in the business of selling floor coverings since 1954 (A. 3). Since that time, appellant's only place of business has been located in New York, New York (A. 3).

*4 Appellant does not have any offices, employees or agents in Quebec (A. 50). It has never owned or leased real property in Quebec or maintained any bank accounts there (A. 50).

ELITE was engaged in the business of manufacturing custom made floor coverings prior to its discontinuance of business operations in 1988 (A. 4, 7, 36). Between 1986 and 1988, appellant and ELITE entered into several agreements providing for the manufacture of carpeting pursuant to design specifications furnished by appellant (A. 6).

Appellant made sporadic purchases prior to 1986 (A. 37-38). In 1986, ELITE'S Vice-President, ALEX McNEE ("McNEE"), visited appellant's office in New York for the purpose of soliciting business (A. 6,38-39). McNEE proposed that his company manufacture certain floor coverings on behalf of appellant (A. 40). There were discussions concerning the types of designs desired by appellant and ELITE'S abilities to manufacture those designs (A. 40-41). The parties also discussed the length of time it would take for delivery (A. 42).

McNEE offered to have his company furnish samples of these designs (A. 41-42). Upon McNEE's return to Canada, ELITE made the samples and sent them to appellant (A. 42-43).

McNEE visited appellant's offices again in 1986 and there were further discussions regarding sales to appellant (A. 43). During that time, the parties entered into an agreement for the purchase of certain floor covering products (A. 44-47). There was a meeting of the mind as to all essential terms, including prices, *5 shipping and insurance costs, quantities and measurements, and time of delivery (A. 44-46).

Subsequent to this visit, appellant sent written purchase orders "as confirmation of pricing, quantity, style [and] color" (A. 46). ELITE shipped the products to appellant upon the completion of their manufacture (A. 48).

McNEE visited appellant's offices again in 1987 in order to solicit additional business (A. 48). An agreement was reached at that time providing that ELITE would manufacture certain floor coverings pursuant to appellant's design specifications (A. 52-53). As in 1986, agreement was reached in New York as to the essential terms, such as prices, time of payment, and quantities (A. 52- 53).

In June, 1987, McNEE and ELITE'S President, JAMES DUNLOP, visited appellant's New York offices (A. 53-54). More business was solicited from appellant at that time, and appellant's principals were invited to visit ELITE'S manufacturing facilities (A. 55).

In July, 1987, appellant's principals (who are married to each other) were visiting friends in Brantford, Ontario (A. 94). During that time, they paid two (2) social visits to ELITE'S facilities in Ontario and Quebec (A. 58-60, 94-95). They also went to a restaurant with McNEE (A. 78). Although there were casual business discussions, appellant did not order any products from ELITE at that time (A. 79).

In December, 1987, McNEE visited appellant's office for the purpose of soliciting additional business (A. 58, 60-51). Appellant and ELITE entered into an agreement at that time provid- *6 ing for the manufacture of certain floor coverings (A. 61-63) with the previous transactions, agreement was reached in New as to all essential terms (A. 61-63).

In 1988, McNEE visited appellant's offices once agai the purpose of soliciting additional business (A. 64). The p entered into another contract in New York and agreement was re as to all essential terms (A. 67).

As of March, 1988, appellant and ELITE had made at four (4) further agreements, all in New York. These agres were fully performed by the parties (A. 63-66). The parties not enter into formal written agreements (A. 69); rather course of conduct was that the parties reached oral agree during McNEE's visits to New York, and that they exchanged wr confirmations of the orders by mail from New York (A. 70-Other than the social visit in July, 1987, appellant's princ: were never present in Quebec (A. 6). Moreover, the May, transaction giving rise to this action came about by appell mailing of a written purchase order from New York to ELIT Quebec (A. 77, 96-97).

Between 1985 and 1988, the level of orders by appel gradually increased to about $100,000 (A. 91). No orders rest from the July, 1987 social visit (A. 79, 142). Rather, appe? did not make additional purchases until October, 1987 (A. 71)

In April, 1988, Dunlop sent a written proposal to ap lant regarding the manufacture and distribution of its desigr 95-96). The parties never entered into such an arrangement (A. *7 In or about May, 1988, appellant sent a written purchase order to ELITE for the manufacture of certain floor coverings known as the "Lynn Hollyn design" (A. 77, 96-97). The products that ELITE shipped to appellant were defective and non-conforming, in that they did meet the specifications of the design furnished by appellant (A. 5, 99-100, 142). In October, 1988, appellant sent correspondence to ELITE complaining of these defects (A. 98-100).

DUNLOP then visited appellant in New York and inspected the defective carpets (A. 5, 143). ELITE agreed to accept a return of the carpets and to give appellant a sales credit (A. 5, 143, 146). However, ELITE went out of business before arrangements were made for the return of the carpets (A. 5, 143).

Appellee alleges that ELITE assigned its accounts receiv-able, including the May, 1988 receivable from appellant, as security for loans (A. 18, 120). Notice of the assignment dated February 26, 1979 was published in a French language newspaper in Montreal on or about July 13, 1988 (A. 123). Appellant never received actual or constructive notice of the assignment (A. 123).

Appellee also alleges it sent a written demand for payment to appellant in June, 1989 (A. 18). In May, 1991, appellee commenced an action the Superior Court of Quebec seeking recovery of the sum of $73,149.16, the amount alleged to be owed on the May, 1988 receivable (A. 18). Appellant was personally served with process on May 17, 1991 (A. 17).

*8 Appellant did not appear in the Quebec action (A. 20). On October 2, 1992 the Quebec Court entered a Default Judgment in appellee's favor for the sum of $73,149.16 (A. 20-21).

PROCEDURAL HISTORY OF THE WITHIN ACTION

Appellee commenced an action in the Court below in January, 1994 to enforce the Quebec Judgment (A. 13). The Complaint alleges that the contract giving rise to the Quebec action was made in Quebec because ELITE "accepted" the order there (A. 15). Appellee also alleged that the Quebec Court had subject matter and personal jurisdiction (A. 15). Jurisdiction was predicated upon diversity of citizenship (A. 14).

Appellant served its responsive pleading in February, 1994 wherein it denied the allegations contained in the Complaint (A. 25).

The First Affirmative Defense asserted that the Quebec Judgment could not be enforced by the Court below because the Quebec Court lacked subject matter and personal jurisdiction (A. 25).

The Second Affirmative Defense asserted that the carpets were defective and breached certain warranties (A. 26).

Appellant also interposed a Counterclaim for the sum of $ 75,000 alleging that the defective carpets were not merchantable, and that it was unable to meet contractual requirements to its customers (A. 26).

*9 Appellee served its Reply to Counterclaims in February, 1994 (A. 29). In addition to generally denying appellant's allegations, appellee interposed an affirmative defense that the Quebec Judgment cannot be collaterally attacked (A. 28). The other affirmative defense is based upon a bare legal conclusion that under Quebec law, appellee assumed the rights but not the liabilities, of ELITE under the May, 1988 contract giving rise to the receivable (A. 29).

Discovery was had and depositions were conducted on July 28, 1994 (A. 30, 86). Appellant's President, ALAN MEISELMAN ("MEISELMAN"), and McNEE were deposed on that date (A. 30, 86, 90). [FN1] The deposition testimony establishes that appellant does not have any minimum contact with Quebec that would make it amenable to suit in that jurisdiction.

FN1. Appellee had no personal knowledge of the underlying contract between appellant and ELITE allegedly giving rise to the receivable.

McNEE gave deposition testimony that the agreements prior to May, 1988 were negotiated at appellant's offices in New York, and that agreement was reached as to all essential terms at that location (A. 40, 45-46, 52, 63, 67, 70). There was also testimony by McNEE that the parties entered into oral agreements in New York, and they exchanged confirmatory memoranda by mail (A. 69-72).

MEISELMAN gave deposition testimony that on or about May 20, 1988, appellant mailed a written purchase order to ELITE for carpets to be manufactured under the "Lynn Hollyn design," and ELITE shipped the products to New York (A. 96- 98). MEISELMAN also *10 testified that appellant. sent correspondence to ELITE complaining of defects (A. 98-100). Interestingly enough, appellee's attorneys did not pose any questions to MEISELMAN as to how ELITE resolved these complaints, i.e., that it agreed to accept a return of the merchandise (A. 100-01).

There was conflicting testimony as to the purpose of the visit to Quebec by appellant's principals in July, 1987. McNEE testified that the purpose of the visit was to "acquaint" appellant's principals with ELITE'S manufacturing capabilities (A. 73). Although McNEE also testified that sales to appellant increased as a result of that visit, he offered no concrete facts in support of the claim (A. 73). Rather, that opinion was based upon his wholly subjective belief that the visit resulted in increased business (A. 73).

MEISELMAN, who made the July,1987 visit with his spouse, testified that the visit was wholly social in nature (A. 94). This version of the facts is consistent with McNEE's testimony that he went "out to dinner" with the MEISELMANS (A. 78).

Moreover, McNEE also confirmed that appellant did not place any additional orders until October, 1987 (A. 71). The May, 1988 transaction, the only sale relevant to this action, was entered into nearly one (1) year after the MEISELMANS' visit to Quebec (A. 96-98).

On October 13, 1994, appellant moved to dismiss the within action upon the ground that the Quebec Court lacked personal jurisdiction (A. 1). In November, 1994, appellee cross-moved for *11 summary judgment enforcing -the Quebec Judgment pursuant to Article 53 of the New York Civil Practice Law and Rules ("CPLR") (A. ill). Appellant filed its opposition to the cross-motion in December, 1994 (A. 139).

The Court below issued a decision on October 13, 1995 (A. 149). The decision contains several findings of fact that are not supported by the relevant documentary evidence. The Court below improperly found that the Quebec action arose from several contracts (A. 160). The deposition testimony established that the Quebec action arose only from the May, 1988 agreement (A. 63, 66, 77, 96-97).

The Court below also operated under the misimpression that appellant and ELITE had entered into a de facto exclusive dealings arrangement between 1986 and 1988 (A. 160). However, the deposition testimony conclusively establishes that each contract was separate and distinct (A. 63-66). In fact, the transactions prior to May, 1988 have no relevance to this action (A. 63-66).

The Court below also mischaracterized the manner in which these contracts were made. It was found that the "initial contacts" and negotiations took place in New York, but that they were made in Quebec because ELITE accepted purchase orders there, it manufactured the carpets in Quebec, and shipped them to New York (A. 160). This finding is incorrect as a matter of law.

These erroneous findings of fact led to an improper disposition by the Court below. First, the Court below denied appellant's motion to dismiss, holding that FRCP 12 (b)(l) and (2) *12 are not proper vehicles to challenge the jurisdiction of the Quebec Court (A. 153-54). Although the motion was mislabelled, it was actually a motion for summary judgment dismissing the action for failure to state a claim (A. 1-110). The Court below should have treated appellant's motion as such; instead, it was denied proced-ually, only.

Second, the Court below granted appellee's cross-motion for summary judgment. The Court below held:

"According to the standards articulated in both New York law and the proof of Quebec law offered by Plaintiff CISC, the Canadian court obtained valid in personam jurisdiction over Defendant Saxony..."

"According to the offer of proof, Saxony was subject to in personam jurisdiction in Quebec if the contract was concluded in Quebec or if the cause of action arose in Quebec. (Khouzam Decl. 558,9). Further, according to the affiant, both standards for obtaining in personam jurisdiction over Saxony in Quebec were fulfilled, though it appears that satisfaction of either standard alone would have been sufficient. (Khouzam Dec. 19). The declaration states that 'the contract was concluded in Quebec, as the last necessary act to bind Elite took place in Quebec upon written confirmation by Elite of Saxony's purchase order. The cause of action arose in Quebec because Saxony's nonpayment caused prejudice to Elite at its place of business in Quebec.' (Khouzam Decl. 59)." [A. 158-59]. (emphasis in original).

The Court below then elaborated:

"A collection on an account receivable underlies the suit brought in the Canadian Court. The action arose in the business relationship between Elite and Saxony; that business relationship arose out of a contract between the two corporations for the manufacture of carpeting at Elite's plant in Quebec. On this basis, a clear nexus existed between the cause *13 of action and the contacts Saxony had to the Canadian forum. Even if that were not the case, sufficient contacts existed to require this Court to recognize the Canadian judgment as a matter of comity. The business relationship between Elite and Saxony involved a number of purchase orders over a period of years, and, as the carpeting was manufactured in Canada at Elite's facilities, substantial portions of the contracts were performed in Canada. While the exact nature of the visit by two principals of Saxony is in dispute, both parties admit that the trip involved a tour of Elite's mills. Moreover, the record indicates that Elite and Saxony may have embarked upon further negotiations regarding a proposal to distribute Saxony's designs in Canada, and that a letter was sent to Canada in which Saxony sought to collect copyright royalties for designs on certain carpets. (PI.'s Mem. at 7)."

"Therefore, Defendant's contention that the foreign court did not obtain valid in personam jurisdiction is without merit. Other than arguing that the initial stage of negotiations between Elite and Saxony took place in New York, and that the 1987 visit was primarily social in nature, Defendant has not set forth any other facts contesting the Canadian court's jurisdiction over the Defendant or over the subject matter of the Canadian action." (A. 160-61).

Finally, the Court below opined that appellant cannot collaterally attack the Quebec Judgment in this action (A. 161-62). Thus, it declined even to consider the affirmative defense and Counterclaim based upon the defective products (A. 161-62).

SUMMARY OF LEGAL ARGUMENTS

Even where subject matter jurisdiction exists, the determination of the Court below must nevertheless be reversed. The Quebec Court did not have personal jurisdiction over appellant.

*14 The Court below, therefore, improperly denied appellant's motion to dismiss. Since issue had been joined, and appellant submitted evidentiary matter that went beyond the pleadings, the motion was one for summary judgment rather than an application as statedly based on FRCP 12 (b)(l) or (2) (A. 1- 110). Even though appellant mislabelled its application as a motion to dismiss under Rule 12 (b), the Court below should have treated it as a request for summa ry j udgme nt.

The Court below also improperly granted appellee's cross-motion for summary judgment. The agreements prior to May, 1988 were negotiated and made in New York (A. 44-47, 52-53, 61-63, 67, 69, 70-72). The parties fully performed those agreements and they did not give rise to the Quebec action (A. 63-66). It was improper for the Court below to conclude either that these agreements were made in Quebec, or that they could furnish a basis for personal jurisdiction over appellant in that forum.

The only agreement giving rise to the Quebec action arose in May, 1988 (A. 63, 66, 77, 96-97). At that time, appellant mailed a purchase order to Quebec, and ELITE shipped the products to New York (A. 77, 96-97). The visit of appellant's principals to Quebec some ten (10) months earlier could not have possibly arisen from the May, 1988 transaction sued upon in Quebec. Thus, it was improper for the Court below to hold that the Quebec Court could exercise "long arm" jurisdiction over appellant (even assuming such jurisdiction were available under Quebec law).

*15 The Court below also erred by resolving disputed issues of fact which themselves would defeat summary judgment. Although the Court acknowledged that the parties disputed the nature of the July, 1987 visit, it summarily determined that the visit had a nexus to the transaction sued upon in Quebec (A. 160). This issue of fact could not be resolved upon conflicting affidavits. Since there was a genuine and material issue of fact as to the Quebec Court's jurisdiction over appellant, it was error for the Court below to grant appellee's cross-motion for summary judgment.

Finally, it was improper for the Court below to rule that appellant cannot collaterally attack the Quebec judgment. Since the Quebec Court did not have personal jurisdiction, appellant may collaterally attack the foreign Judgment. The record demonstrates that New York is the appropriate forum for litigation the action commenced in Quebec. The underlying transaction was made in New York, and most of the essential witnesses reside there (A. 77, 96-97). Since appellee "does business" in New York, it has substantial connections with this forum. By contrast, appellant has no connections with Quebec. Thus, New York has a more substantial interest in this litigation.

The record also establishes that appellant has a meritorious defense and Counterclaim based upon the defective products which ELITE agreed to return (A. 5, 98-100, 142-43, 146).

*16 ARGUMENT

I

THE COURT BELOW IMPROPERLY DENIED APPELLANT'S MOTION TO DISMISS THIS ACTION

The Court below denied appellant's motion to dismiss upon the ground that FRCP 12 (b)(l) and (2) were not proper vehicles to challenge the subject matter and personal jurisdiction of the Quebec Court (A. 154). This determination is based upon a misapprehension as to the nature of appellant's motion.

Appellant's motion to dismiss this action was not based upon Rules 12 (b)(i) or (2) despite mislabelling. Rather, the motion sought a dismissal as a matter of law arguing that appellee does not have a claim upon which relief can be granted by the Court below (A. 12).

This action is purported to be based upon the Uniform Foreign Country Money-Judgment Recognition Act. CPLR 5301 et seq. (A. 14-16). CPLR 5303 provides that a "conclusive" foreign country money judgment is enforceable by way of action on the judgment. [FN2] However, CPLR 5304 (a) (2) provides that a judgment "is not conclusive if the foreign court did not have personal jurisdiction over the defendant."

FN2. A judgment is "conclusive" under CPLR 5303 if it meets the requirements of CPLR 53C2: it is "final, conclusive and enforceable where rendered."

Since the Quebec Court did not have personal jurisdiction over appellant, the foreign Judgment cannot be enforced under *17 Article 53 of the CPLR. Mandel-Mantello v. Treves. 103 Misc.2d 700, 426 N.Y.S.2d 929, 931 (Sup.Ct., N.Y.Co., 1980), rev'd on other grounds. 79 A.D.2d 569, 434 N.Y.S.2d 29 (1st Dep't, 1980). Appellee has not stated a claim for relief and appellant's motion should have been treated as a proper vehicle to dismiss this action.

Although appellant's motion papers were mislabelled as a motion to dismiss under Rule 12 (b) (A. l), it was, in actuality, a motion for summary judgment under Rule 56.

Rule 56 (b) provides that a defendant may move for summary judgment "at any time." In this case, issue was joined in February, 1994 (A. 27). A motion for summary judgment is an appropriate vehicle to dismiss a claim for failure to state a cause of action. Schwartz v. Compagnie General Transaltantioue. 405 F.2d 270, 273 (2nd Cir., 1968).

Moreover, appellant submitted evidentiary matter that went beyond the pleadings (A. 13-109). The District Court must treat a motion to dismiss as an application for summary judgment where the movant presents matters outside the pleadings. Advanced Cardiovascular Systems. Inc. v. Scimed Life Systems. Inc. 988 F.2d 1157, 1164 (Fed.Cir., 1993).

II

THE COURT BELOW ERRED IN GRANTING APPELLEE'S CROSS-MOTION FOR SUMMARY JUDGMENT

To be subject to in personam jurisdiction, a defendant must have had certain "minimum contacts" with the forum so that the *18 exercise of such jurisdiction would not offend traditional notions of fair play and substantial justice. Ackerman v. Levine. 788 F.2d 830, 838 (2nd Cir., 1986). Under federal law, the recognition of foreign judgments is governed by principles of comity. Victrix S.S. Co. S.A. V. Salen Dry Cargo A.B. 825 F.2d 709, 713 (2nd Cir., 1987).

Under New York Law, CPLR Article 53 is a codification of common law principles of comity. Siegel, Practice Commentaries. C5301:l, McKinney's Consolidated Laws, Book 7B, p. 486 (West Publishing Co., 1978). It is that body of law which governs this action, as the District Court recogni zed (A. 156).

Federal courts will recognize foreign judgments "whenever the foreign court had proper jurisdiction." Victrix S.S. Co., S.A. v. Salen Drv Cargo A.B. supra. 825 F.2d at 713. The plaintiff bears the ultimate burden of establishing personal jurisdiction. Beacon Enterprises. Inc. v. Menzies. 715 F.2d 757, 762 (2nd Cir., 1983).

"For a plaintiff to prevail on summary judgment when defendant contests personal jurisdiction, his burden is even greater; he must demonstrate that there is no genuine issue of material fact on the jurisdictional question." Beacon Enterprises. Inc. v. Menzies. supra. 715 F.2d at 762. All ambiguities and inferences must be construed in defendant's favor and the motion should be denied if defendant generates any uncertainty as to the true state of any material fact. Id.

*19 In applying these rules to the case at bar, it is clear that appellee did not establish its entitlement to summary judgment on its claim arising under Article 53 of the CPLR. The prior agreements not giving rise to the Quebec action were made in New York. The May, 1988 transaction giving rise to that action did not arise from appellant's July, 1987 visit to Quebec. Appellant had no "minimum contacts" with Quebec that would subject it to jurisdiction in that Province.

Appellant made the May, 1988 order by mail and appellee accepted it by shipping the products to New York. Appellant was never present in Quebec with regard to that transaction, the only one sued upon.

It was also improper for the Court below to consider past transactions that were fully performed. For "long arm" jurisdiction to attach, the defendant's contact in the foreign forum must have some rational nexus to the individual transaction sued upon rather some amorphous "business relationship." CPLR 302 (a).

Moreover, it was palpably improper for the Court below to resolve disputed issues of fact as to the nature of appellant's visit to Quebec. These errors mandate a reversal of the decision and order appealed from.

A. Appellant's Visit to Ontario Cannot Subject It to Personal Jurisdiction in Quebec

Appellee and the Court below have mistakenly referred to the Quebec Judgment as being a "Canadian judgment" (A. 114, 150).

*20 The foreign Judgment was not issued by a Canadian national but by the Superior Court of the Province of Quebec (A. 20) Superior Court is the court of general jurisdiction; it h first instance every suit not assigned exclusively to anothe by a specific provision of law." Quebec Code of Civil Pr ("QCCP") § 31.

Canada has a dual system of national and pro Courts that is analogous to our system of federalism. Mart Hubbell, Quebec Law Digest, at 8 (R.R. Donnelley & Sons Co., Thus, the Quebec Court cannot exercise personal jurisdicti a non-resident defendant who has "transacted" business Province of Ontario. Doing Business In Canada § 13.02[2] (Bender & Co., Inc., 1994).

In this case, the Court below improperly relie appellant's presence in Ontario in July, 1987 as a bas determining that the Quebec Court had personal jurisdiction (A. 151, 160). That is, the District Court failed to disti; appellant's visit to ELITE'S Ontario facilities from a se; visit to Quebec (A. 151, 160).

"Each province or territory has its own rules of pr with respect to the validity of service on persons, partner corporations and other business associations." Canada, supra, at § 13.02[2]. Thus, a person "transacting" in Ontario cannot be subject to personal jurisdiction in Que more than his contacts in New York could subject hi to s *21 Canada. It was patent error for the Court belorw to consider appellant's visit to ELITE'S Ontario facilities.

B. The Agreements Relied Upon by the Court Below in rinding Personal Jurisdiction Were Made In New York.

(i) The Prior Agreements Did Not Give Rise to the Quebec Action

As the Court below correctly held (A. 156), an action to enforce a foreign country money judgment is governed by New York law. In Re Union Carbide Corp. Gas Plant Disaster. 809 F.2d 195, 204 (2nd Cir., 1987), cert, den. 484 U.S. 871 (1986); Pariente v. Scott Meredith Literary Aaencv. Inc. 771 F.Supp. 609, 615 (S.D. N.Y., 1991). The issue of whether the Quebec Court had personal jurisdiction must be determined by reference to New York "long arm" jurisdiction statute, CPLR 302(a).

CPLR 302 (a) (1) provides that the New York courts "may exercise personal jurisdiction over any nondomicilliary...who in person or through an agent transacts any business within the state or contracts anywhere to supply goods or services in the state."

It is well established that the action must arise from the defendant's contacts with the forum. Beacon Enterprises. Inc. v. Menzies. 715 F.2d at 763; Colucci & Uraans v. 1 Mark. Inc. _ A.D.2d ___, 637 N.Y.S.2d 705, 706 (1st Dep't, 1996). There must be "some articulable nexus between the business transacted and the cause of action sued upon." McGowan v. Smith. 52 N.Y.2d 268,437 N.Y.S.2d 643, 645 (1981). The defendant's other business transac-*22 tions in* the forum that: have no relevance to the cause of action do not subject him to jurisdiction. Beacon Enterprises. Inc. v. Menzies. supra. 715 F.2d at 765; Pacamor Bearings. Inc. v. Molon Motorist & Coil. Inc. 102 A.D.2d 355, 477 N.Y.S.2d 856, 857 (3rd Dep't, 1984).

It is also well established that a defendant is not subject to personal jurisdiction where its only contact with New York is the purchase or lease of goods by mail or telephone. Int'l Customs Associates v. Ford Motor Co. 893 F.Supp. 1251, 1261 (S.D.N.Y., 1995); Benlamin Sheridan Corp. v. Benjamin Air Rifle Co. 827 F.Supp 171, 175 (W.D.N.Y., 1993); Concrete Piper Products Corp. v. Modern Building Materials. Inc. 213 A.D.2d 1023, 624 N.Y.S.2d 496, 497 (4th Dep't, 1995).

In the case at bar, there is no dispute that it is only the May, 1988 agreements between appellant and ELITE that gave rise to the Quebec action (A. 63, 66, 77, 96-97). MEISELMAN gave deposition testimony that he sent a purchase order by mail and that ELITE shipped the carpets to New York (A. 77, 96-97). As in the authorities cited above, this is a simple solicitation by mail that cannot subject appellant to personal jurisdiction in Quebec.

It was also improper for the Court to even consider the prior transactions and appellant's July, 1987 visit to Quebec, which they have no nexus to the May, 1988 transaction giving rise to the Quebec action. Indeed, McNEE admitted at his deposition that appellant had honored all its contractual obligations in the prior sales (A. 63, 66). Therefore, the prior contracts and the *23 July, 1987 visit cannot provide a basis for "long arm" jurisdiction in Quebec. In Pacamor Bearings. Inc. v. Molon Motors & Coil, supra. the Court held that an Illinois buyer of goods was not subject to personal jurisdiction where he sent a purchase order by mail to New York and its representatives visited New York on unrelated business. 477 N.Y.S.2d at 857. That authority mandates a reversal of the Judgment of the Court below because the facts are identical to those in the case at bar - appellant did no more than mail a purchase order to Quebec, and the visit to Quebec was unrelated to the May, 1988 transaction (A. 77, 96-97).

(ii) The Prior Agreements Were Made In New York

The Court below improperly determined that the prior agreements not giving rise to the foreign action where made in Quebec because ELITE sent written confirmation of the purchase orders to New York (A. 159). It is undisputed that each of these agreements was negotiated at appellant's offices in New York, and that the parties reached a meeting of the minds on all essential terms, including price, quantity, time of delivery, and measurements were (A. 44-47, 52-53, 61-63). Even if they were considered, they were insufficient to establish jurisdiction.

McNEE's deposition testimony established that no written agreements were prepared, but that oral agreement was reached on essential terms (A. 69-72). He also attested that the parties exchanged written confirmations of the oral agreements (A. 70-72). *24 New York law governs where the contract is made in the State, even if the parties desire to be bound by the laws of another jurisdiction. Keywell Corp. v. Weinstein. 33 F.3d 159, 163 (2nd Cir., 1993). Here, appellant and ELITE had a binding oral contract under New York Law. City University of New York v. Finance, Inc. 129 A.D.2d 494, 514 N.Y.S.2d 244, 246 (1st Dep't, 1987).

The Court below improperly took at face value appellee's unsupported contention that the purchase orders and confirmations constituted the agreements (A. 159). McNEE's deposition testimony establishes, on the contrary, that these documents were not the agreements; rather, they were merchants' confirming memoranda of the oral agreements made in New York (A. 70-72).

N.Y.U.C.C. 12-201(1) [the Statute of Frauds] provides that a sale of goods for the price of $500 or more is not enforceable "unless there is some writing sufficient to indicate that a contract for sale has been made." The Statute of Frauds does not require that the agreement be in writing. Rather, all that is required is that these be some confirmatory memoranda indicating that an oral agreement was made. Hilord Chemical Corp. v. Ricoh Electronics. Inc. 875 F.2d 32, 36-37 (2nd Cir., 1989); Bazak Int' 1 Corp. v. Mast Industries. Inc. 73 N.Y.2d 113, 538 N.Y.S.2d 503, 505 (1989).

Section 2-201(2) provides that as to an oral agreement between "merchants," a written confirmation sufficient against the sender is binding upon the recipient unless the latter furnishes *25 written objection within ten (10) days. Hilord Chemical Corp. v. Ricoh Electronics. Inc. supra, 875 F.2d at 36.

The determination of the Court below that ELITE'S written confirmation of the purchase orders constituted the contract is incorrect as a matter of law. The memorandum does not constitute the contract; rather, it is merely confirmation of the oral agreement. Duncan v. Wohn. South & Co. 201 App. Div. 737, 195 N.Y.S. 381, 383 (2nd Dep't, 1922). Even assuming that the confirmatory writing satisfies the Statute of Frauds, the plaintiff still has the burden of proving that an oral agreement was made. Bazak Int'l Corp. v. Mast Industries. Inc., supra. 538 N.Y.S.2d at 505. [FN3]

FN3. The May, 1988 agreement was enforceable, in any event, under N.Y.U. C.C. $2-201(3) (a) providing that an oral agreement for a sale of "specially manufactured" goods is enforceable even in the absence of a memorandum. This purchase order called for the sale of specially manufactured goods under the "Lynn Hollyn design" (A. 96).

In Civale Corp. v. Colonial Aluminum Sales. Inc. 165 A.D.2d 805, 564 N.Y.S.2d 52 (1st Dep't, 1990), Iv. app. den. 77 N.Y.2d 801, 566 N.Y.S.2d 586 (1991), the parties entered into an oral agreement. As in this case, the buyer sent a written purchase order containing the agreed terms and the seller commenced performance. The Court held that M[b]y all objective manifestations, an unambiguous agreement had been reached as to the material terms of this transaction. 564 N.Y.S.2d at 53.

These authorities establish that the prior agreements were made in New York. The parties orally agreed on all essential terms at appellant's offices and they then exchanged confirming memoranda (A. 70-72). The confirmations sent by ELITE from Quebec *26 (A. 71-72) did not constitute the agreements. Rather, they were evidence of the oral agreements made in New York.

c. The Court Below Improperly Considered

It is well established that a plaintiff may not rely solely upon his own activities in the forum for purposes of long arm jurisdiction. Benjamin Sheridan Corp. v. Benjamin Air Rifle Co. f supra, 827 F.Supp. at 176. "In addition, plaintiff's own activities in New York, on behalf of defendant, cannot be relied on to establish the presence of the defendant in this State." J.E.T. Advertising Associates. Inc. v. Lawn King. Inc. 84 A.D.2d 744, 443 N.Y.S.2d 745, 747 (2nd Dep't, 1981). Rather, it is the defendant's activities with respect to the specific contract at issue which determine whether he is subject to jurisdiction. Peter Lisec Glastechnische Industry v. Lenhardt Maschinenbau. 173 A.D.2d 70, 577 N.Y.S.2d 803, 804 (1st Dep't, 1991).

In the case at bar, the Court below erred in accepting appellee's unproven allegations that under Quebec law, ELITE'S activities in the foreign forum in performance of the agreements is sufficient to subject appellant to suit there (A. 158-59).

District Courts do not take judicial notice of the law of other nations. Foreign law is a question of fact which must be pleaded and proven by the party relying upon it. Weiss v. Glempf 792 F.Supp. 215, 229 (S.D.N.Y., 1992); Munsell v. La Brasserie MoIson Du. Quebec Ltd. 623 F.Supp. 100, 102 (E.D.N.Y., 1985). Appellee's bare conclusory allegations that ELITE'S activities in *27 Quebec subjected appellant to suit there (A. 121) are woefully inadequate to satisfy its burden on a motion for summary judgment of proving this "body of law." Indeed, appellee has not identified any specific provision of Quebec law that allows its Courts to exercise personal jurisdiction over nonresidents that have no connections with the forum (A. 121). Nevertheless, the Court below improperly took at face value appellee's unproven allegations that ELITE'S activities in Quebec are sufficient to subject a nonresidents to suit (A. 158-59).

"The existence and contents of a foreign law become a triable issue of fact when their contents are not set forth in detail, where their existence is disputed or where the accuracy of the translation of the same is raised." Matter of Estate of Jenkins. 133 Misc.2d 420, 506 N.Y.S.2d 1009, 1011 (Sur. Ct., Queens Co., 1986). In this case, it is clear that appellee has not set forth in detail the Quebec law relied upon, and that the contents of that foreign law are in dispute (A. 191-21). Therefore, the Court below erred by summarily determining this issue of fact.

The Court below properly determined that Quebec is "a sister common law jurisdiction with procedures akin to our own." Clarkson Co. Ltd, v. Shaheen. 544 F.2d 624, 630 (2nd Cir., 1976) (A. 157). However, Clarkson has no application to appellant's challenge to the jurisdiction of the Quebec Court.

In Clarkson. a Canadian bankruptcy trustee brought an action to obtain the debtors' business records. The debtors were *28 two (2) Newfoundland corporations having executive offices in New York. Jurisdiction in the foreign Court was not disputed:

"Appellants do not argue that the Newfoundland court lacked jurisdiction over

the bankrupts." 544 F.2d at 630.

Nor does Porisini v. Petricca. 90 A.D.2d 949, 456 N.Y.S. 2d 888 (4th Dep't, 1982), also cited upon by the Court below (A. 158), have any application to this case. Porisini, was an action to enforce a foreign money judgment entered in England against a New York attorney.

The Court held that a foreign judgment will be recognized in New York where it is "predicated on any jurisdictional basis it recognizes in its internal law." 456 N.Y.S.2d at 890. Porisini was a claim for unpaid rent. Defendant's responsive pleading admitted that he lived in plaintiffs' London apartment "at the time complained of." Id.

The Court held that the English Court had "long arm" jurisdiction which was similar to CPLR 302(a)(4) [suit against nondomiciliary who owns, uses or possess real property in New York]. Id. By reason of defendant's admission that he lived in the London apartment, "the predicate for personal jurisdiction [was] established beyond dispute." Id.

Appellee's unproven allegation that a plaintiff's activities in Quebec can subject a defendant to jurisdiction there has no similarity to New York's "long arm" jurisdiction rules. Unlike Clarkson and Porisini. appellant has hotly contested the jurisdiction of the foreign Court. The authorities cited above establish *29 that ELITE'S activities in Quebec were not a valid basis for subjecting appellant to suit.

D. The Visit to Quebec by Appellant's Principals Has Mo Neacus to the Transaction Sued Upon

"Although a visit to the forum is a presumptively more significant contact than a phone call or letter, it to must be •purposeful1 in order to sustain jurisdiction. When a non-resident defendant visit to the forum allows him to purposefully avail himself of the benefits and protection of the forum's laws, one visit can be enough to sustain jurisdiction...when the visit however, is not for the purpose of initiating or forming a relationship..., New York courts have declined to assert jurisdiction." U.S. Theatre Corp. v. Gunwvn/Lansburcrh Ltd.825 F.Supp. 594, 569 (S.D.N.Y., 1993).

There are numerous authorities, including two (2) rulings from New York's highest Court, holding that there is no personal jurisdiction over a non-resident defendant where his visit to the forum has no relationship to the cause of action. Manhattan Life Ins. Co. v. A.J. Stratton Syndicate Co. 731 F.Supp. 587, 593 (S.D.N. Y., 1990) [meeting in New York having no relationship to claim for indemnification did not subject defendant to jurisdiction]; Hvide Marine Int'l. Inc. v. Employer Ins, of Wausau. 724 F.Supp. 180, 183- 84 (S.D.N.Y., 1989) [visits to forum long after the insurance claim was filed had no relationship to claim and did not subject defendant to jurisdiction]; *30Sayles Biltmo Inc. v. Soft-Fab Textile Processors. Inc., 440 F.Supp. 1010, 1013 (S.D.N.Y., 1977) [single visit to forum that was unrelated to claim did not subject defendant to jurisdiction]; Concrete Detailing Services. Inc. v. Thompson Steel Co., Inc., 411 F.Supp. 1021, 1023 (S.D.N.Y., 1976) [single one-day visit by office of defendant at which time the general course of performance of contract was discussed was insufficient to give rise to jurisdiction]; A.I.L., Div. of Cutler-Hammer. Inc. v. Symetric Industries. Inc., 360 F.Supp. 1138, 1140 (E.D.N.Y., 1973) [no jurisdiction was present where all negotiations culminating in the contract took place outside the forum and defendant's representatives visited plaintiff's facilities long after the contract was executed to witness some tests]; McGowan v. Smith, supra. 52 N.Y.2d at 272, 437 N.Y.S. 2d at 645 [defendant's visits to New York to conduct marketing research was unrelated to sale of defective product sold in that forum]; McKee Elec. Co. v. Rauland-Borq Corp., 20 N.Y.2d 377, 283 N.Y.S.2d 34, 38 (1967) [single visit by defendant's representative to discuss unrelated matters did not subject it to jurisdiction]; Juron & Minzer v. Dranoff & Patrizio. 194 A.D.2d 402, 598 N.Y.S.2d 514 (1st Dep't, 1993) [defendant's visit to New York at plaintiff's request for purpose of retrieving file did not subject it to jurisdiction]; First Nat'1 Bank & Trust Co. v. Wilson. 171 A.D.2d 616, 567 N.Y.S.2d 468, 469-70 (1st Dep't, 1991) [guarantor's visit to New York to restructure unrelated loan agreements did not subject him to jurisdiction]; Estate of Bruno. 126 A.D.2d 845, 510 N.Y.S.2d 770, 772 (2nd Dep't, 1987), Iv. app. den. *3169 N.Y.2d 610, 516 N.Y.S.2d 1026 (1987) [no personal jurisdiction existed where non-resident's numerous visits to decadent in New York were unrelated to petitioner's claim under statutory "right of election" and the property was located in Pennsylvania]; Pacamor Bearings. Inc. v. Molon Motors & Coil. Inc. supra. 477 N.Y.S.2d at 857 [defendant was present in New York on unrelated business].

The facts of A.I.L., Div. of Cutler-Hammer. Inc. v. Symetrics Industries. Inc. supra. are very similar to those in the case at bar. As in this case, all of the negotiations culminating the contract were held in defendant's state of residence. Several months later, defendant's representative visited plaintiff's facilities in New York to witness some tests. Plaintiff subsequently commenced a breach of contract action in New York.

The Court granted defendant's motion to dismiss holding that the visits did not subject it to personal jurisdiction:

"The visits of a few representatives of the defendant to Melville, NY, long after the execution of the contract, for witnessing tests were in no way a substantial contact in New York." 360 F.Supp. at 1138.

In Siedler v. Jacobson. 86 Misc.2d 1010, 383 N.Y.S.2d 833 (App. Term, 1st Dep't, 1976), the defendant purchased an antique from plaintiff while on vacation in Austria. Defendant refused to honor payment and plaintiff commenced an action in Austria. As in this case, defendant did not appear, and the Austrian Court issued a default judgment. Plaintiff then commenced an action in New York to enforce the foreign judgment under Article 53 of the CPLR. The Court held that the judgment could not be enforced:

*32 "Analysis of the legislative history of Article 53 makes clear that it was not the intend-•ent of that statute to adopt the broad definition of 'transacting any business1 applicable under CPLR section 302 as the criterion for extending recognition to foreign country judgments themselves bottomed upon correspondingly liberal bases of jurisdiction [citations omitted]. While we are cognizant of the desirability of affording recognition to foreign country judgments so that judgments obtained in our own courts will receive reciprocally favorable treatment abroad, the nature of defendant's solitary act in this case was so casual and incidental to the foreign forum that it could not possibly serve as a juris-dictional predicate sufficient to grant conclusive effect to the default judgment sued upon." 383 N.Y.S.2d at 834.

In the case at bar, it is undisputed that, appellant's principals visited Quebec ten (10) months before the May, 1988 transaction giving rise to the Quebec action (A. 77, 96-97). There can be no possible nexus between appellant's contacts in Quebec and the cause of action. That, in itself, mandates a reversal of the determination and the grant of summary judgment in appellant's favor.

Even if the prior agreements were properly considered, they did not subject appellant to jurisdiction in Quebec. As in Seidler v. Jacobson. supra. appellant's social visit, which was part of the MEISELMANS long weekend vacation (A. 94), was so casual and incidental to that forum that it could subject appellant to suit. The visit to ELITE'S facility in Quebec did not result in any purchases at that time (A. 79), and the visit was clearly of a social nature:

*33 Q. Apart from visiting the mills, was it of a social nature too, did you [McNEE] go out to dinner with these people?

A. Yes, we did.

Q. Was [sic] there any orders given at that time?

A. Not to my knowledge, no. (A. 78-79).

It was also improper for the Court below to transform several distinct sales agreements into a "business relationship" of exclusive dealing (A. 160). None of its suppositions have any support in the record. The deposition testimony establishes nothing more than six (6) unrelated contracts, one (1) of which gave rise to the Quebec action (A. 44-47, 52-53, 61-63, 77, 96-97).

Although the Court below found that "Elite and Saxony may have embarked upon further negotiations regarding a proposal to distribute Saxony's designs in Canada" (A. 160), what it completely disregarded was MEISELMAN's undisputed deposition testimony that the parties "[njever ever" entered into such a relationship (A. 96).

It is well established that defendants are not amenable to suit in the forum where their representatives' visits do not result in the formation of any contracts. ICC Primex Plastic Corp. v. LA/ES Laminati Estrusi Termplastic. S.P.A. 775 F.Supp. 650, 655 (S.D.N.Y., 1991) [negotiations about formation of joint venture were merely exploratory]; Coastal Mart. Inc. v. Coastal Oil Co. 681 F.Supp. 1090, 1092 (S.D.N.Y., 1988).

In any event, these discussions were not conducted in Quebec (A. 95-96). And as in ICC Primex. the discussions about *34 ELITE's proposal to distribute the designs were explorator? contract was ever made (A. 96). Therefore, they cannot for basis for jurisdiction.

The cases relied upon by the Court below are ? distinguishable. In Ackerman v. Levine, supra, the visited Germany on at least two (2) occasions for legal tions with plaintiff, 788 F.2d at 838, a. 6. Thus, Unl case, there was a direct nexus between these contacts and plaintiff's claim for unpaid legal fees.

In Solomon Ltd. v. Biedermant Co., Inc., 177 A.D. 576 N.Y.S.2d 118, 119 (1st Dep't, 1991), the agreement. showing has been made in this case. Rather, the visit was call that did not result in any new business at that time 78-79.)

E. The court Below improperly Resolved Issues of Fact As to the Nature of Appel-lant's Visit

It is well established that personal jurisdiction be resolved on a motion for summary judgment if there genuine issue of material fact as to whether defendant trar business in the forum. Beacon Enterprises. Inc. v. Menzies. 715 F.2d at 762? Fireareen Ltd, v. Claxton. 160 A.D.2d 4 N.Y.S.2d 765, 767 (1st Dep't, 1990); Krupnick v. Danin. 86 623, 446 N.Y.S.2d 357 (2nd Dep't, 1982).

*35 The Court has broad discretion in resolving jurisdiction-al challenges, including an evidentiary hearing. Int'1 Customs Associates. Inc. v. Ford Motor Co. supra. 893 F.Supp. at 1258-59. These issues, however, should not be resolved upon conflicting affidavits. Krupnick v. Danin. supra. 446 N.Y.S.2d at 357-58.

Kruonick involved similar facts to those in this case. Plaintiff alleged that the parties entered into a loan agreement and that he gave the loan proceeds to defendant when he visited New York. As in this case, defendant alleged that the agreement was already made before he came to New York, the visit was "purely social" and his receipt of the loan proceeds was incidental to that visit. The Court held:

"With such antithetical claims, it is not possible to determine credibility from written affidavits. Testimony from witnesses more appropriately serves this purpose. Special Term abused its discretion by deciding this issue solely on the affidavits." 446 N.Y.S.2d at 357-58.

The record in this case also gives rise to conflicting versions as to the nature of the Quebec visit. McNEE alleged that the purpose was for appellants to see ELITE'S manufacturing capabilities (A. 73), and MEISELMAN attested that the visit was purely social in nature (A. 94). It is respectfully submitted that the Court below abused its discretion by summarily resolving this issue in appellee's favor upon conflicting affidavits and deposition testimony.

*36 III

APPELLANT CAN COLLATERALLY ATTACK THE QUEBEC JUDGMENT

"[A] judgment: rendered without jurisdiction is subject to collateral attack." Royal Zenith Corp. v. Continental Ins. Co. 63 N.Y.2d 975, 483 N.Y.S.2d 993, 994 (1984). The default judgment is a nullity and cannot be enforced in New York. Id.

In the case at bar, appellee did not establish the jurisdiction of the Quebec Court (Point II, supra). Thus, it was improper for the Court below to hold that it cannot be collaterally attacked in this Court.

A. New York is a More Appropriate Forum to Litigate Appellee's Claim on the Receiv-able

The New York Court of Appeals has held:

"In our enthusiasm to implement the reach of the long-arm statute (CPLR 302), we should not forget that defendants, as a rule, should be subject to suit where they are normally found, that is, at their pre-eminent headquarters, or where they conduct substantial business activities." McKee Elec. Co. v. Rauland-Borg Corp. supra. 283 N.Y.S.2d at 38.

In this case, appellant's "pre-eminent headquarters" is located in New York (A. 3). It would have been no hardship for appellee to have commenced the underlying action in New York (rather than seeking to obtain an unfair advantage by bringing the action in a foreign forum where appellant has no contacts) since it maintains its American Headquarters here. Indeed, appellee is amenable to suit in New York on any action because it "does busi-*37 ness" here. CPLR 301; Hvide Marine Int'l. Inc. v. Employers Ins, of Wausau. supra. 724 F.Supp. at 184.

Moreover, most of the essential witnesses are located in New York (A. 3). These factors mandate a determination that New York is the more appropriate factor to litigate the underlying action. See Blanco v. Banco Industrial de Venezuela. 997 F.2d 974, 982-83 (2nd Cir., 1993); Del Fierro v. Pepsico Int'l. 897 F.Supp. 59, 63 (E.D.N.Y., 1995).

B. Th Record Establishes that Appellant Has Meritorious Defenses

It has never been disputed that the carpets shipped to appellant pursuant to its May, 1988 purchase order were defective in that they did not conform to the "Lynn Hollyn design" (A. 5, 99-100, 142). It is also undisputed that DUNLOP personally came to New York to inspect the merchandise, and appellee agreed to their return, as well as a sales credit (A. 5, 143, 146). By reason of the foregoing, appellant should be heard on this meritorious defense, which also forms the basis of its Counterclaim (A. 26).

CONCLUSION

FOR THE REASONS STATED ABOVE, THE JUDGMENT OF THE COURT BELOW SHOULD BE

REVERSED