1996 WL 33664487 (2nd Cir.)

For opinion see 104 F.3d 352

Briefs and Other Related Documents

United States Court of Appeals, Second Circuit.

CANADIAN IMPERIAL BANK OF COMMERCE, Plaintiff-Appellee,

v.

SAXONY CARPET COMPANY, INC., Defendant-Appellant.

No. 95-9139.

July 25, 1996.

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

Appellant's Reply Brief

Of Counsel:

Edward R. Dorney

Abraham & silver, Attorneys for Defendant-Appellant, 500 Fifth Avenue, New York. NY 10110, (212)768-7060

TABLE OF CONTENTS

TABLE OF AUTHORITIES ... (i)

PRELIMINARY STATEMENT ... 1

ARGUMENT ... 1

I THE QUEBEC COURT DID NOT HAVE PERSONAL JURISDICTION OVER APPELLANT ... 1

A. The Default Judgment Was Issued by a Quebec Court Rather Than a National Canadian Tribunal ... 1

B. The Social Visit of Appellant's Principals to Quebec in July, 1987 Had No Nexus to the May, 1988 Contract Giving Rise to the Quebec Action ... 2

C. The Prior Agreements Did Not Furnish a Basis for Personal Jurisdiction in Quebec ... 7

D. The Purpose of the Social Visit to Quebec by Appellant's Principals Gives Rise to a Genuine Issue of Material Fact ... 12

II APPELLANT'S MOTION TO DISMISS WAS IMPROPERLY DENIED ... 18

III THE QUEBEC JUDGMENT MAY BE COLLATERALLY ATTACKED IN NEW YORK ... 20

CONCLUSION ... 22

*i TABLE OT AUTHORITIES

Anderson y. Liberty Lobbyr Inc., 477 U.S. 242 (1986) ... 12

Arrowsmith v. United Press Int'l, 320 F.2d 219 (2nd Cir., 1963) ... 15

Associated American Artists. Inc. v. Brevard Community College, 508 F.Supp. 292 (S.D.N.Y., 1981) ... 5

Bank of Montreal v. Kouah, 612 F.2d 467 (9th Cir., 1980) ... 15

Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757 (2nd Cir., 1987) ... 4, 8, 13

Bee-Low Wholesale Product. Inc. v. A.W. Management. Inc., _ Misc.2d _, _ N.Y.S. 2d _ (App. T., 2nd Dep't, 1996) [N.Y.L.J., July 2, 1996, p. 29, col. 4] ... 5, 6, 7

Benjamin Sheridan Corp. v. Benjamin Air Rifle Co., 827 F.Supp. 171 (W.D.N.Y., 1993) ... 11

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) ... 16

Civale Corp. v. Colonial Aluminum Sales. Inc., 165 A.D.2d 805, 564 N.Y.S.2d 52 (1st Dep't, 1990), ly. app den. 77 N.Y.2d 801, 566 N.Y.S.2d 586 (1991) ... 8, 9

Clarkson Co. Ltd. v. Shaheen, 544 F.2d 624 (2nd Cir., 1976) ... 19

Cutco Industries. Inc. v. Naughton, 806 F.2d 361 (2nd Cir., 1986) ... 4, 16

DeYouno v. Beddome, 707 F.Supp. 132 (S.D.N.Y., 1989) ... 19

Duncan v. Wohn. South & Co., 201 App. Div. 737, 195 N.Y.S. 381 (2nd Dep't, 1922) ... 9

Dunstan v. Hicrains, 138 N.Y. 70 (1893) ... 15

George Reiner & Co., Inc. v. Schwartz, 41 N.Y.2d 648, 394 N.Y.S.2d 844 (1977) ... 17

Hilord Chemical Corp. v. Riloh Elsctyonics Inc., 875 F.2d 32 (2nd Cir., 1989) ... 10

*ii Hvide Marina Int'l. Inc. v Employer Ins, of Wausau 724 F.Supp. 180 (S.D.N.Y., 1989) ... 21

ICC Primax plastic Corp. v. LA/ES Laminati Estrusti Termplastic, S.P.A., 775 F.Supp. 650 (S.D.N.Y., 1991) ... 8, n.1

Int'l Cugtoias Associates v. Foyd Motor Co., 893 F.Supp. 1251 (S.D.N.Y., 1995) ... 4

Matter of Estate of Jenkins, 133 Misc. 2d 420, 506 N.Y.S. 2d 1009 (Sur. Ct., Queen's Co., 1986) ... 11

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) ... 11

Judal Industries. Inc. v. Welsbach Elec. Corp. 138 A.D. 2d 573, 526 N.Y.S.2d 154 (2nd Dep't, 1988) ... 8, n.2

Krunnick v. Danin, 86 A.D.2d 623, 446 N.Y.S.2d 357 (2nd Dep't, 1982) ... 14

Lancaster v. Zufle, 165 F.R.D. 38 (S.D.N.Y., 1996) ... 4, 7

Melendez v. Professional Machine & Tool Co. Ltd., 190 A.D.2d 657, 593 N.Y.S.2d 258 (2nd Dep't, 1993) ... 17

Munsell v. La Brasserie Molson Du Quebec Ltd., 623 F.Supp 100 (E.D.N.Y., 1985) ... 11

Peter Lisec Glastechnische Industry v. Lenhardt Maschinebau, 173 A.D.2d 70, 577 N.Y.S.2d 803 (1st Dep't, 1991) ... 16

Porlsini v. Petricca, 90 A.D.2d 949, 456 N.Y.S.2d 888 (4th Dep't, 1982) ... 2, 14

Rite Fabrics. Inc. v. Stafford-Hicrcrins Co., 366 F.Supp 1 (S.D.N.Y., 1973) ... 9

Royal Zenith Corp. v. Continental Ins. Co., 63 N.Y.2d 975, 483 N.Y.S.2d 993 (1984) ... 20

Snyder v. Madera Broadcasting. Inc., 872 F.Supp 1191 (E.D.N.Y., 1995) ... 7

Solomon Ltd, v. Biederman & Co. Inc., 177 A.D.2d 350, 576 N.Y.S.2d 118 (1st Dep't, 1991) ... 18

Steinberg v. Metro Entertainment Corp., 145 A.D.2d 333, 534 N.Y.S. 2d 995 (1st Dep't, 1988) ... 20

*iii Sterling Nat'1 Bank & Trust Co. of New York v. Fidelity Mortgage investors, 510 F.2d 870 (2nd Cir., 1975) ... 17

Tahan v. Hodason, 662 F.2d 862 (D.C. Cir., 1981) ... 20, n.4

Weiss V. Glemp, 792 F.Supp. 215 (S.D.N.Y., 1992) ... 11

Young v. Albert Pick Hotels, 320 F.2d 719 (D.C. Cir., 1963) ... 21, n.5

STATUTES

Federal Rule of Evidence 201(b) ... 21, n.5

N.Y. CPLR 302(a) ... 2, 12

N.Y. CPLR 302(a)(l) ... 4

N.Y. CPLP 302(a)(4) ... 15

N.Y. CPLR 5301 ... 1, 18

N.Y. CPLR 5304(a)(2) ... 18

N.Y. CPLR 5305 ... 19, n.3

N.Y. CPLR 5305(a)(3) ... 16

N.Y.U.C.C. S2-201 ... 8

N.Y.U.C.C. 52-201(1) ... 10

N.Y.U.C.C. § 2-201(2) ... 10

N.Y.U.C.C. 52-204(1) ... 10

N.Y.U.C.C. 52-207(1) ... 9

N.Y.U.C.C. 52-207(3) ... 9

OTHER AUTHORITIES

Doing Business in Canada 12.02(2) (Matthew Bender & Co., Inc., 1994) ... 20

PRELIMINARY STATEMENT

This Appeal presents a question of whether a default judgment entered in favor of appellee and against appellant in the Superior Court of the Province of Quebec for the District of Montreal may be enforced in New York pursuant to the Uniform Foreign Country Money-Judgment Recognition Act. N.Y. CPLR 5301 et seq. The record in this case conclusively establishes that the transaction giving rise to the Quebec action concerned a May, 1988 contract of sale between appellant and appellee's assignor, ELITE CARPET MANUFACTURING LTD. ("ELITE"), which arose when appellant mailed a purchase order to Quebec and the latter shipped the goods to New York. Appellant had no contacts with Quebec concerning that transaction, and the prior July, 1987 visit of its principals to Quebec, had no possible nexus to the May, 1988 contract of sale. Therefore, the determination of the Court below that the Quebec Court acquired personal jurisdiction over appellant was clearly erroneous and should be reversed.

ARGUMENT

I

THE QUEBEC COURT DID NOT HAVE PER-SONAL JURISDICTION OVER APPELLANT

A. The Default Judgment Was issued by a Quebec Court Rather Than a National Canadian Tribunal

Appellee persists in misidentifying the default judgment as emanating from a Canadian National Court (Appellant's Brief at 2), when, in fact, it was issued by a provincial Court in Quebec.

*2 Indeed, appellee attempts to obscure this critical fact by representing that the judgment was rendered by the "Superior Court of the District of Montreal" (Appellee's Brief at 1, 2, 3-4). However, the record conclusively demonstrates that the judgment was issued by the Superior Court of the Province of Quebec for the District of Montreal (A.20).

Appellee's mischaracterization of the foreign tribunal leads it to assert the outlandish proposition that appellant's contacts with the Province of Ontario can subject it to personal jurisdiction in a Quebec provincial Court (Appellee's Brief at 21). A New York Court will recognize a foreign judgment if it is based upon a jurisdictional basis that is similar to principles of long-arm jurisdiction codified in CPLR 302 (a). Forisini v. Petricca. 90 A.D.2d 949, 456 N.Y.S.2d 888, 890 (4th Dep't, 1982).

The concept that a Court can assert personal jurisdiction over a defendant because o? its contacts in another forum is one that is completely alien to CPLR 302 (a). Appellant's contacts with Ontario could not subject it to suit in Quebec any more than its contacts with New York could make it amenable to suit in Vermont. See Doing Business In Canada. § 13.02[2] (Matthew Bender & Co., 1994).

B. The Social Visit of Appellant's Principals to Quebec in July, 1987 Had No Nexus to the May/ 1988 Contract Giving Rise to the Quebec Action.

ELITE'S former Vice-President, ALEX McNEE ("McNEE"), gave undisputed deposition testimony that appellant and ELITE entered *3 into six distinct contracts of sale of custom-made carpeting between 1986 and 1988 (A. 44-47, 52- 53, 61-63, 69-70, 77). Indeed, McNEE testified that each agreement he made on behalf of ELITE was separately negotiated and made in appellant's New York office (A. 69-70).

McNEE also testified that appellant fully honored its contractual obligations with regard to the agreements he had negotiated with appellant:

"Q. As of this point you've had no problem with them as far as payment of their various outstanding bills"

A. None." (A. 34).

Appellant's President, ALAN MEISELMAN ("MEISELMAN") gave undisputed deposition testimony that in May, 1988, he mailed a written purchase order for certain carpeting to ELITE in Quebec, and that ELITE shipped the carpeting to appellant in New York (A. 96-98).

Although appellee has taken the disingenuous position that the Quebec action arose from "several contracts" (Appellee's Brief at 4), this belief is clearly unfounded since it concedes that the May, 1988 contract was the only one "at issue" that formed the basis for the Quebec action (Id. at 23-24). There can be no dispute, further, that the Quebec action arose from a simple purchase of goods by mail or telephone.

Appellant's social visit to Quebec in July, 1987, some ten months prior to the making of the May, 1988 contract, could not have had any possible nexus to the Quebec action arising from *4 appellant's alleged failure to honor its obligations under that contract. The Quebec Court had no basis for exercising long-arm jurisdiction.

It is well established that two conditions must be satisfied in New York in order for a Court to exercise in personam jurisdiction under CPLR 302 (a)(1). First, the non-resident defendant must have "transacted business" in the forum, and, second, the claim against the non-resident must have arisen out of that business activity. Cutco Industries. Inc. v. Naughton, 806 F.2d 361, 365 (2nd Cir., 1986); Lancaster v. Zufle. 165 F.R.D. 38, 40 (S.D.N.Y., 1996). The second requirement is not satisfied where the non-resident's contact with the forum has no relationship to the transaction giving rise to the action. Beacon Enterprises. Inc. v. Menzies. 715 F.2d 757, 765 (2nd Cir., 1987).

Appellee has not responded to appellant's contention that it was improper for the Court below to enforce the Quebec judgment because the second requisite for exercising long-arm jurisdiction could not be satisfied.

Appellee has also conspicuously failed to address appellant's central argument on this appeal: that the Quebec Court did not acquire personal jurisdiction where goods were ordered by mail and the product was shipped to New York. It is well settled that a defendant is not subject to personal jurisdiction where its only contact with the forum is the purchase of goods by mail or telephone. Int'l Customs Associates v. Ford Motor Co., 893 F.Supp. 1251, 1261 (S.D.N.Y., 1995).

*5 This rule of law was recently reaffirmed by a New York Appellate Court. pee-Low Wholesale Product. Inc. v. A.W. Management. Inc. _ Misc.2d _, _ N.Y.S.2d _ (App. T., 2nd Dep't, 1996) [N.Y.L.J., July 2, 1996, p. 29, col. 4], In Bee-Low, the plaintiff, as in this case, visited defendant at its New York City office and solicited sales of its product. Defendant subsequently placed orders by telephone and plaintiff delivered the products to its New York City office.

Defendant allegedly failed to pay for some of the products and plaintiff commenced an action in Nassau County District court. A motion to dismiss was made upon the basis that the Court lacked personal jurisdiction over defendant because it did not transact business in Nassau County. The District Court denied the motion, but the Appellate Term unanimously reversed and dismissed the Complaint:

"These telephone calls, which were placed over a period of time - without evidence of more sufficient activities by defendant in Nassau County - do not constitute sufficient minimum contacts for the establishment of long arm jurisdiction. It is well established that a foreign defendant whose only contact with new York is the purchase of goods by telephone or mail from a New York plaintiff does not constitute purposeful acts sufficient to sustain long arm jurisdiction." N.Y.L.J., July 2, 1996, p. 29, col. 4.

The same result was reached in Associated American Artists. Inc. v. Brevard Community College. 508 F.Supp. 292, 294 (S.D.N.Y., 1981), where a non-resident defendant entered into a lease of art works by telephone and mail, and the plaintiff delivered the goods. The Court held that:

*6 "Brevard's solicitation by mail in New York and its receipt of the goods from New York are not sufficient purposeful acts to confer jurisdiction in New York." 508 F.Supp. at 924.

The Court supplied the following rationale for its holding:

"[I]t should be observed that acceptance of Associatedfs contention that jurisdiction under § 302 (a)(1) can be exercised over a foreign defendant who merely reserved and rented goods from a New York company would not only be adverse to New York's public interest by making out-of-staters wary to communicate with New York businesses, but would also raise serious due process concerns." Id.

Appellee's contention in the case at bar that appellant was amenable to suit in Quebec where it placed a single order by mail and ELITE shipped the product to New York, merely because appellant made five prior purchases for which full payment was tendered (A.34), raises the same due process concerns, and certainly would not encourage New Yc rkers to transact business with Quebec entities. Indeed, in Bee-Low Wholesale Product, Inc. v. A.W. Management. Inc., supra. the Court declined to find personal jurisdiction where the parties had made several unrelated contracts over a period of time because, as in this case, the defendant had no meaningful contacts with the forum with respect to any of the contracts. N.Y.L.J., July 2, 1996, p. 29, col. 4.

Appellee also contends that appellant's contractual obligation to remit payment to Quebec furnished a basis for jurisdiction (Appellee's Brief at 19- 20). While appellee correctly notes that the place of payment might be a factor in considering whether to exercise jurisdiction, the authorities it cites for this *7 proposition also hold that the mere designation of a place of payment, is insufficient to confer jurisdiction over a non-resident. Lancaster v. Zufle. supra. 165 F.R.D. at 40; Snvder v. Madera Broadcasting. Inc. 872 F.Supp. 119i, 1195 (E.D.N.Y., 1995). In Bee-Law Wholesale Product. Inc. v. A.W. Managementr Inc. supra. it was held that:

"[D]efendant's payments for the produce do not constitute sufficient minimum contacts since the payments were not such a continuous or substantial activity made by defendant in carrying on its trade or business (in Nassau County) due to the fact that they were clearly made and received solely in the furtherance of plaintiff's business in Nassau County." N.Y.L.J., July 2, 1996, p. 29, col. 4.

Appellant's obligation in this case, to remit payment to Quebec, did not furnish a basis for jurisdiction in Quebec as it had no contacts with that forum relating to the May, 1988 contract. For that reason alone, it was improper for the Court below to have enforced the Quebec judgment.

C. The Prior Agreements Did Not Furnish a Basis for Personal Jurisdiction In Quebec

Appellee contends that the Quebec Court had jurisdiction over appellant because of a nondescript "business relationship" between 1986 and 1988 (Appellee's Brief at 19-20). The record conclusively establishes that appellant and ELITE entered into six *8 distinct contracts during that time (A. 69-70) rather than any joint venture or agency agreement. [FN1]

FN1. Although appellant had discussions with ELITE concerning the latter 's proposal to distribute its designs in Canada, it is undisputed that no such relationship was ever consummated (A. 96). A nonresident's contacts with the forum which do not result in the formation of any contract are insufficient to render it amenable to suit. ICC Primex Plastic Corp. v. LA/ES Laminati Estrusti Term-plastic, S.P.A. 775 F. Supp. 650, 655 (S.D.N.Y., 1991). Appellee does not dispute this point.

The May, 1988 contract is the only one that was relevant for the purpose of determining whether the Quebec Court acquired personal jurisdiction. Beacon Enterprises. Inc. v. Menzies. supraf 715 F.2d at 765. Even if the prior agreements (which appellant believes to be irrelevant) were considered, they cannot furnish a basis for jurisdiction, since they were all made in New York.

Appellee does not dispute that appellant and ELITE reached oral agreement on all essential terms of the contracts in New York (A. 69-70). [FN2] However, appellee misreads appellant's argument as suggesting that "under UCC § 2-201 the contracts were made in New York, upon [appellant's] sending of a purchase order." Appellant did not raise such a contention.

FN2. The essential terms of a contract for the sale of goode are quantity, price, and time and manner of delivery. Judal Industries. Inc. v. Welsbach Elec. Corp. 138 A.D.2d 573, 526 N.Y.S.2d 154, 156 (2nd Dep't, 1988). It is undisputed that appellant and ELITE agreed upon those terms in New York (A. 69-70).

Rather, appellant took the position that merely reflects the applicable law under Article 2 of the New York Commercial Code - under N.Y.U.C.C. § 2-201, the purchase orders and confirmations were confirmatory memoranda of the oral agreements reached in New York, but they did not constitute the contracts. *9Civale Corp. v. Colonial Aluminum Sales. Inc. 165 A.D.2d 805, 564 N.Y.S.2d 52, 53 (1st Dep't, 1990), Iv app. den. 77 N.Y.2d 801, 566 N.Y.S.2d 586 (1991); Duncan v. Wohn. South & Co., 201 App. Div. 737, 195 N.Y.S. 381, 383 (2nd Dep't, 1922).

Appellee nevertheless contends that the agreements were made in Quebec because ELITE'S confirmation which were mailed from that forum constituted an "acceptance" of those contracts under N.Y.U.C.C. § 2-207 (1) [Appellee's Brief at 24].

N.Y.U.C.C. S2-207 (l) provides:

"A definite and seasonal expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms."

The purpose of that statute was to modify the common law rule that an expression of acceptance containing additional or different terms was a counteroffer, and a rejection of the offer, and to resolve the "battle of the forms" by providing for legal rules and principles conforming to the practices and reasonable expectations of modern businessmen. Rite Fabrics. Inc. v. Staf-ford-Higgins Co. 366 F.Supp. 1, 7 (S.D.N.Y., 1973). In this case, appellee has engaged in the "battle of the U.C.C. provisions." Indeed, appellee completely overlooks N.Y.U.C.C. § 2-207 (3) which provides:

"Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the *10 contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act."

That provision is in accord with N.Y.U.C.C. § 2-204 (1) which provides:

"A contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract."

Thus, Article 2 of the Uniform Commercial Code expressly contemplates the making of oral agreements. Such agreements will be enforceable provided that there is some confirmatory memorandum. N.Y.U.C.C. § 2-201 (1); Hilord Chemical Corp. v. Ricoh Electronics. Inc. 875 F.2d 32, 36-37 (2nd Cir., 1989). Indeed, Section 2-21 (2) provides:

"Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received."

It is this provision which should apply to the undisputed facts of this case rather than Section 2-207 (1). That is, ELITE furnished written confirmation of the oral agreements rather than an "acceptance" (A. 69-70).

Appellee also contends that the Quebec Court had jurisdiction because ELITE manufactured the goods in that forum and appellant's "nonpayment caused prejudice to Elite at its place of business in Quebec" (Appellee's Brief at 7, 21). This contention, however, is wholly unresponsive to appellant's argument that a *11 plaintiff may not rely upon its own activities in the forum to subject the defendant to long-arm jurisdiction, even where it engaged in those activities on behalf of the defendant. Benlamin Sheridan Corp. Benjamin Air Rifle Co. 827 F. Supp. 171, 176 (W. D. N. Y., 1993); 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 only 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).

Appellee also contends that it has presented "proof of Quebec law that the exercise of jurisdiction over [appellant] was proper [and appellant] has proffered nothing to the contrary" (Appellee's Brief at 22).

In actuality, it is appellee who has produced no evidentiary support for its mere conclusory allegations that ELITE'S activities in Quebec were sufficient to render appellant amenable to suit in that forum (A. 121). Foreign law is a question of fact which must be pleaded and proven by the party relying upon it. Weiss v. Glemp. 792 F. Supp. 215, 229 (S. D. N. Y., 1992); Munsell v. La Brasserie Molson Du Quebec Ltd., 623 F. Supp. 100, 102 (E. D. N. Y., 1985). Where, as in this case, the party relying upon the foreign law fails to set forth its contents, then it has not discharged its burden of proof. Matter of Estate of Jenkins. 133 Misc. 2d 420, 506 N. Y. S. 2d 1009, 1011 (Sur. Ct., Queens Co., 1986). In fact, *12 appellee has not even identified the body of Quebec law it has relied upon (A. 120).

In any event, appellee concedes that "New York law governs actions brought in New York to enforce a foreign judgment" (Appellee's Brief at 12). Under New York law, the plaintiff's activities in the forum are not sufficient to subject a defendant to jurisdiction. Since appellee's assertion is contrary to the principles of long-arm jurisdiction codified in CPLR 302 (a), it must be rejected.

D. The Purpose of the Social Visit to Quebec by Appellant's Principals Gives Rise to a Genuine Issue of Material Fact.

It is well settled that a motion for summary judgment is to be denied if there is any genuine issue of material fact precluding judgment in the movant's favor. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 248 (1986). In the case at bar, the record conclusively establishes that it the May, 1988 contract was the only one giving rise to the Quebec action (A. 34), and that the social visit of appellant's principals to Quebec some ten months prior to the making of that contract had no possible nexus to the transaction. Since appellant had no other contacts with Quebec, there is no genuine issue of material fact precluding summary judgment in appellant's favor that it was not amenable to suit in the Quebec Court.

However, appellee convinced the Court below to erroneously consider other contracts which did not give rise to the Quebec *13 action (A. 34), and it invites this Court to consider them as well. In such an event, there is a genuine issue of material fact precluding summary judgment in appellee's favor as to whether there was any nexus between those contracts and the social visit because the purpose of the visit was hotly disputed.

Appellee took the position that the purpose of the social visit was to acquaint appellant's principals with ELITE'S manufacturing capabilities (A. 73). Although McNEE testified that the social visit led to increased business, he offered nothing other than his subjective belief to support that assertion (A. 73). indeed, McNEE admitted that appellant did not place any orders at that time (A. 79).

As appellee recognizes, MEISELMAN testified that the visit to ELITE'S manufacturing facilities was incidental to a long weekend vacation wherein he and his wife had visited friends in Brantford, Ontario (A. 94). Although there were casual business discussions (A. 94), it is undisputed that appellant did not place any additional orders until October, 1987 (A. 71). Moreover, McNEE testified that he socialized with the MEISELMANS when they visited Quebec (A. 78).

This Court has held that personal jurisdiction cannot be resolved on a motion for summary judgment if there is a genuine issue of material fact as to whether the defendant transacted business in the forum. Beacon Enterprises. Inc. v. Menzies supra, 715 F. 2d at 762. Even the Court below recognized that "the exact *14 nature of the visit... is in dispute" (A. 160). Nevertheless, it resolved that issue upon conflicting affidavits.

Case law establishes that is was error for the Court below to summarily resolve this dispute in appellee's favor. In Kruonick v. Danin. 86 A. D. 2d 623, 446 N. Y. S. 2d 357 (2nd Dep't, 1982), the plaintiff alleged that the purpose of defendant's visit to New York was the execution of a loan agreement. The defendant averred that the visit was purely social because the loan agreement was executed prior to his arrival, and that his receipt of the loan proceeds in New York was incidental to that visit. The Court held that such "antithetical claims" gave rise to a substantial issue of fact that could not be resolved on a motion for summary judgment. 446 N. Y. S. 2d at 357-58.

Appellee contends that there were no issues of fact because: (a) the MEISELMANS toured ELITE'S factories; (b) business was discussed; and (c) there was an increase in business after the visit that "included the May, 1988 sale chat formed the basis for the Montreal action" (Appellee's Brief at 22-23). In light of the authority of Krupnick v. Danin. supra. which appellee failed to address, there were substantial issues of fact that could not be resolved on a motion for summary judgment.

The authorities cited by appellee are readily distinguishable. In Porisini v. Petricca. supra, there was no dispute that the defendant resided in plaintiff's apartment at the time complained of. The Court, therefore, recognized a jurisdictional basis for the underlying claim for unpaid rent giving rise to a *15 British default judgment that was not unlike that provided for in CPLR 302 (a)(4). 456 N. Y. S. 2d at 890. In the case at bar, by contrast, appellee's contention that appellant's Quebec contacts having no connection to the contract giving rise to the Quebec action can subject the latter to jurisdiction has no similarity to the bases of long-arm jurisdiction under CPLR 302 (a).

Arrowsmith v. United Press Int'l. 320 F. 2d 219 (2nd Cir., 1963), furnishes no support to appellee. In Arrowsmith. this Court held that it was error for the District Court to dismiss a libel action upon the ground that the complaint failed to state a claim without having first resolved defendant's jurisdictional challenge. 320 F. 2d at 221. This Court then remanded the case to the District Court for an evidentiary hearing on the jurisdictional issue which could not be resolved upon the motion papers. Id. at 234.

In Bank of Montreal v. Koucrh. 612 F. 2d 467 (9th Cir., 1980), a non-resident defendant did much more than make a social visit to a Canadian province. The defendant owned 49% of the stock in a British Columbian corporation, he was an officer and director, and he was present in British Columbia to negotiate and execute a personal guaranty of corporate debts. Unlike this case, there was a direct nexus between defendant's transaction in British Columbia and plaintiff's claim based upon the former's default of his guaranty.

In Dunstan v. Higgins, 138 N. Y. 70 (1893), the defendant appeared in a British breach of contract action. He did not challenge the Court's jurisdiction but he interposed other affirma- *16 tive defenses. Defendant failed to appear at trial after receiving an adverse pre-trial ruling in the British Court. Thus, the New York Court of Appeals had little difficulty in affirming the enforceability of the resulting default judgment. 138 N. Y. at 75.

In New Central Jute Mills Co. Ltd, v. Citv Trade & Industries. Ltd. 65 Misc. 2d 653, 318 N. Y. S. 2d 980 (Sup. Ct., N. Y. Co., 1971), the parties had entered into a written agreement providing that any disputes arising out of it were to be resolved by binding arbitration in India. Defendant had notice of the Indian arbitration, as well as subsequent judicial proceedings in Calcutta to confirm the award, but declined to appear. Thus, Justice EDWARD J. GREENFIELD enforced the Indian Court's confirmation of the award pursuant to CPLR 5305 (a)(3) providing that a foreign money judgment shall be enforced if "the defendant prior to the commencement Of the proceedings had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved." 318 N. Y. S. 2d at 984.

For the same reason, Burger King Corp. v. Rudzewicz. 471 U. S. 462 (1985), has no application at bar. In Burger King, the Supreme Court held that a non-resident defendant was amenable to suit in Florida where he executed a franchise agreement providing that it was to be governed by Florida law, and that actions concerning the agreement could be commenced in that State. 471 U. S. at 481-82.

In Cutco Industries. Inc. v. Naughton. supra. upon which appellee has placed great reliance, this Court reversed the dis- *17 missal of a complaint on jurisdictional grounds, and remanded the case for an evidentiary hearing, where there were factual issues concerning whether a franchisee's visits to New York over a four-year period to negotiate various franchise agreements, and modifications thereto, subjected it to jurisdiction. 806 F. 2d at 367-68. Since this Court determined that the jurisdictional issue could not be resolved as a matter of law where defendant had several contacts, it reasonably follows that the question concerning appellant's one-time social visit should not have been summarily decided without an evidentiary hearing.

In Sterling Nat'1 Bank & Trust Co. of New York v. Fidelity Mortgage Investors. 510 F. 2d 870, 873-74 (2nd Cir., 1975), this Court held that there was jurisdiction over a non-resident that issued a promissory note to a New York bank that lent it funds, and the loan proceeds were deposited in two bank accounts maintained by defendant in this State. In the case at bar, it is undisputed that appellant maintained no bank accounts or other property in Quebec (A. 90).

George Reiner & Co. Inc. v. Schwartz, 41 N. Y. 2d 648, 394 N. Y. S. 2d 844 (1977), has no application to this case because the non-resident defendant negotiated and entered into an employment agreement in New York, and his breach gave rise to the action. In the case at bar, it is undisputed that appellant's principals did not enter into any agreements when they visited Quebec (A. 79).

In Melendez v. Professional Machine & Tool Co. Ltd., 190 A. D. 2d 657, 593 N. Y. S. 2d 258, 259 (2nd Dep't, 1993), a non-resident *18 seller of goods was held to be amenable to suit in New York under CPLR 302 (a)(1) which provides for jurisdiction over a defendant who "contracts anywhere to supply goods or services in the state." In this case, it is agreed that appellant did not contract to supply goods or services in Quebec.

Finally, in Soloman Ltd, v. Biederman & Co. Inc., 177 A. D. 2d 118, 576 N. Y. S. 2d 118 (1st Dep't, 1991), the defendant mailed a purchase order to plaintiff in London. Defendant's representative then visited plaintiff in London to "implement" this contract. 576 N. Y. S. 2d at 119. Thus, unlike this case, the London contact had a direct nexus to the breach of contract claim giving rise to the British default judgment. Id. It is such a requisite nexus between appellant's Quebec contacts and the underlying claim that is missing in this case.

II

APPELLANT'S MOTION TO DISMISS WAS IMPROPERLY DENIED

Appellee contends that the lower Court's failure to treat appellant's motion as a request for summary judgment did not result in any prejudice because the same result would have been reached. (Appellee's Brief at 28). Appellant does not wish to quibble over such procedural niceties. The thrust of its argument has been that this action should be dismissed because it fails to state a claim under CPLR Article 53.

As appellee recognizes, a foreign money judgment cannot be enforced in New York "where the foreign court did not have *19 personal jurisdiction over the defendant CPLR 5304 (a)(2)" (Appellee's Brief at 12). This was the basis of appellant's notion to dismiss. That motion should have been granted because the Quebec Court did not have jurisdiction over appellant (Section I, su-EEa). [FN3]

FN3. None of the bases of jurisdiction provided for in CPLR 5305 are present - it is undisputed that appellant was not served with process in Quebec, it did not voluntarily appear, or previously agree to submit the Quebec Court's jurisdiction, it was never domiciled in Quebec, nor did it maintain an office or any other property there.

It must be noted that there is no such rule of law that "jurisdictional objections are narrowly construed when the foreign jurisdiction is a sister common law jurisdiction like Canada" (Appellee's Brief at 8). The authorities cited by appellee certainly do not support that proposition. In Clarkson Co., Ltd, v. Shaheen. 544 F. 2d 624 (2nd Cir., 1976) a Canadian bankruptcy court authorized a trustee to obtain business records from corporate debtors organized under Newfoundland law. The trustee brought an action to obtain the records in New York where the debtors maintained their offices. This Court held that the trustees were entitled to such relief because the "[a]ppellants [did] not argue that the Newfoundland court lacked jurisdiction." 544 F. 2d at 630.

Appellees have also misstated the holding of DeYounq v. Beddome. 707 F. Supp. 132 (S. D. N. Y., 1989), as "reject[ing] a challenge to the jurisdiction of a Canadian court" (Appellee's Brief at 13). In DeYouna. the Court actually declined to resolve the jurisdictional challenge because the complaint was dismissed *20 upon grounds of comity where the same claims were previously litigated in an Alberta Court and plaintiff participated in the prior proceeding. 707 F. Supp. at 134-37. [FN4]

FN4. In Tahan v. Hodgson. 662 F. 2d 862 (D. C. Cir., 1981), defendant did not challenge an Israeli Court's jurisdiction, but alleged that service was ineffective because the process was in the Hebrew language and no English translation was provided.

III

THE QUEBEC JUDGMENT MAY BE COLLATER-ALLY ATTACKED IN NEW YORK

Appellee places great emphasis upon the fact that appellant "could have entered a special appearance to contest jurisdiction in the Montreal action, but it elected not to" (Appellee's Brief at 8).

This argument is legally irrelevant in that it fails to take account of the well-settled rule of law in New York that a default judgment rendered without personal jurisdiction over the defendant is a nullity and subject to collateral attack. Royal Zenith Corp. v. Continental Ins. Co. 63 N. Y. 2d 975, 483 N. Y. S. 2d 993, 994 (1984).

In Steinbercr v. Metro Entertainment Corp. 145 A. D. 2d 333, 534 N. Y. S. 2d 995 (1st Dep't, 1988), cited by appellee, it was held that a Florida default judgment was final, conclusive, and, not subject to collateral attack because "Respondent did not challenge the jurisdiction of the Florida Court."

In this case the Quebec judgment is a nullity because the Superior Court did not have personal jurisdiction over appellant in *21 the first instance (Section I, supra). The Quebec judgment, therefore, cannot be enforced under CALF 5304 (a) (2), and it is subject to collateral attack upon the bases which the lower Court erroneously refused to consider.

Appellee does not dispute that the goods shipped under the May, 1988 were defective (Appellee's Brief at 26). Nor could it do so, as the record establishes that ELITE'S President personally inspected the defective product in New York, and that he agreed to give appellant a credit for that sale (A. 5, 99-100, 142-43, 146).

Although appellee asserts that appellant's forum non-conveniens defense was waived by failing to appear in Quebec, it goes to great lengths to dispute the latter's contention that New York is the appropriate forum to litigate the underlying claim (Appellee's Brief).

Appellee does not dispute that it maintains its American Headquarters in New York. [FN5] It is subject to jurisdiction in New York under CPLR 301 because it does business in Manhattan on a systematic and continuous basis. Hvide Marine Int'l. Inc. v. Employers Ins, of Wausau. 724 F. Supp. 180, 184 (S. D. N. Y., 1989). On the other hand, appellant has no connections with Quebec that would subject it to jurisdiction there (Section I, supra).

FN5. Although not part of the record, this Court may take judicial notice of appellee's Manhattan NYNEX White Pages listing with an address at 425 Lexington Avenue, New York, New York described as its"U. S. Headquarters." Federal Rule of Evidence 201 (b); Young v. Albert Pick Hotels. 320 F. 2d 719, 720 (D. C. Cir., 1963).

*22 It would have been no hardship for appellee to have commenced this action in New York (rather than seeking to obtain an unfair advantage over appellant by bringing it in a foreign forum). The fact that appellee commenced a second action to enforce the judgment, when it was already in New York at the time the original action was brought, shows that it would have been appropriate to preserve scarce judicial resources by litigating the claim in New York.

Moreover, as the agreements were made in New York, and most of the essential witnesses reside here, New York is the more appropriate forum for resolving the underlying claim.

CONCLUSION

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

REVERSED.