Blogs

Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts
Posted: February 19, 2015

Decision Illustrates How Foreign Documents Create Procedural Stumbling Blocks

On January 2, 2015, Justice Grays of the Queens County Commercial Division issued a decision in Smart Union Mining Investments Ltd. v. Tang Xue Jin, 2015 NY Slip Op. 30196(U), illustrating procedural shortcomings that can cause a motion to fail.

In Smart Union Mining Investments, the plaintiff brought a proceeding to domesticate a foreign-country money judgment. The parties each moved for judgment. The court denied both motions. We repeat the entirety of the court’s discussion below to illustrate how procedural shortcomings relating to foreign documents and procedures doomed both motions.

First, the court explained the standard for domesticating a foreign money judgment:

Pursuant to CPLR S 5303 and S 5304(a)(I), a foreign country money judgment which is final and conclusive may be enforced in New York by a motion for summary judgment in lieu of complaint. Under the doctrine of comity, the New York courts will recognize the judgment provided it is based on procedures compatible with our concepts of due process, by tribunals which are fair and impartial, and when personal jurisdiction is obtained over the defendant. For the purposes of CPLR Article 53, a foreign country judgment is considered to be conclusive as between the parties to the extent it grants or denies recovery of a sum certain. Generally, a foreign money judgment is to be recognized in New York under article 53 unless a ground for nonrecognition under
CPLR S 5304 is applicable. Under CPLR S 5304(a), a foreign judgment will not be recognized if the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law, or the foreign court did not have personal jurisdiction over the defendant. Certain discretionary grounds may also be a basis for refusing to recognize a foreign judgment.

A foreign judgment need not be recognized if the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend.

(Internal quotations and citations omitted) (emphasis added). Second, the court turned to the parties’ arguments why the judgment should (or should not) be recognized. The court denied the defendant’s motion because:

[t]o the extent defendant relies upon the English translations of his sworn statements to establish he did not receive timely notice of the Hong Kong action in time to defend, they are facially defective and inadmissible. CPLR S210 I(b) provides that where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate. The affidavits of Tabitha Ashura, Kelly Kim, Phillip Van Hing Wong and George Z. Shen do not state that they made the translations of the respective documents.

Plaintiff fared no better:

To the extent plaintiff asserts the Hong Kong court had a basis to exercise personal jurisdiction over defendant by virtue of the contract, it relies upon an English translation of the contract which is in the Chinese language. The translation, however, is accompanied by an affidavit of Charles K. Smith, which fails to indicate he was the translator of the contract, set forth his qualifications and state that the translation is accurate. In addition, plaintiff has failed to establish that the service upon defendant was reasonably calculated under all the circumstances to apprise him of the Hong Kong action. Plaintiff has failed to show that expedient service was appropriate insofar as personal service upon defendant pursuant to the methods of service set forth in CPLR 9308( I), (2) and (4) were impracticable. Plaintiff also has failed to demonstrate that a copy of the summons was published in the Chinese language newspapers in Hong Kong and the People’s Republic of China in accordance with the amended order of the Hong Kong court. Plaintiff has failed to submit any English translations of the purported notices published in such newspapers and corresponding translators’ affidavits, or any affidavits of publication in such newspapers, including English translations, if necessary and corresponding translators’ affidavits.

(Internal quotations and citations omitted). We highlight the errors identified by the court not to criticize counsel but to show how dealing with foreign, and particularly foreign language, documents presents many additional procedural hurdles that must be surmounted in order for the court to get the the substance of a dispute.

View posts