FILED: QUEENS COUNTY CLERK 01/17/2020 02:05 PM
`NYSCEF DOC. NO. 47
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`INDEX NO. 713741/2019
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`RECEIVED NYSCEF: 01/17/2020
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`SUPREME
`COUNTY
`
`OF THE STATE
`COURT
`OF QUEENS
`
`OF NEW YORK
`
`HUIZHI
`
`LIU,
`
`-against
`
`-
`
`GUOQING
`
`GUAN and XIDONG
`
`FANG,
`
`Plaintiff,
`
`Defendants.
`
`NOTICE
`
`OF ENTRY
`
`Index
`
`No.
`
`713741/2019
`
`PLEASE
`
`TAKE
`
`NOTICE
`
`that
`
`the within
`
`is a true
`
`copy
`
`of
`
`the Memorandum/Order
`
`by
`
`Judge
`
`Denis
`
`J. Butler,
`
`which
`
`was
`
`duly
`
`entered
`
`in the Office
`
`of
`
`the Clerk
`
`of New York
`
`County
`
`on
`
`January
`
`7, 2020
`
`in this matter.
`
`Dated:
`
`New York,
`January
`
`New York
`17, 2020
`
`Goldberger
`
`& Dubin,
`
`P.C.
`
`Esq.
`
`Renee
`M. Wong,
`Of Counsel
`401 Broadway,
`New York,
`
`Suite
`New York
`
`306
`10013
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`1 of 5
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`FILED: QUEENS COUNTY CLERK 01/07/2020 12:11 PMFILED: QUEENS COUNTY CLERK 01/17/2020 02:05 PM
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`NYSCEF DOC. NO. 46NYSCEF DOC. NO. 47
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`INDEX NO. 713741/2019INDEX NO. 713741/2019
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`MEMORAN DUM
`
`SUPREME COURT
`]AS PART 12
`
`QUEENS COUNTY
`
`FILED
`
`JAN - ? 2020
`
`HU I ZHI L]U,
`
`---x
`
`Plaintif f (s),
`
`NTY
`
`RK
`LLE
`UNTY
`
`cou
`Index
`Number:713 't 41 / 20L9
`
`-against-
`GUOQING GUAN and XIDONG
`
`FANG,
`
`Motion Date:
`November 12, 2019
`
`Motion Seq. No.:001
`
`Defendant (s) .
`-------x
`The following papers were read on this motion by plaj"ntif f for an
`order directing the entry of judgment for plaintiff
`and against
`defendants in the amount of 52,486,372, pfus lnterest on the amount
`of 52,464,000 from November 9, 201'l to August 5, 2019 at the rate
`of 2? per month, and at a rate of 4? per month thereafter; and
`cross-motion by defendants for an order, pursuant to CPLR 3212r
`granting summary judgment dismissing plaintiff's motion.
`
`Papers
`Numbered
`.. . .E2-1
`
`Motion, Affirmation, Exhibits
`Notice of
`Notice of
`Cross-Motion, Af f irmati on,
`Affidavit
`Et2 - 2B
`Affirmation In
`Opposition, Exhibits,
`Law...
`Memorandum of
`..834-44
`Memorandum In
`Reply.
`E4 5
`Upon the foregoing papers, j-t is ordered that this motion and
`cross-motion are determined as foll-ows:
`Plaintiff seeks enforcement of a foreign money judgment under
`CPLR article 53 in the amount of RMB 17.6 million, excfusive of
`interest and 1ega1 fees, that was obtained in the People's Repub.I.ic
`of China.
`On or about May 74, 2018, pJ-alntif f commenced an action
`sounding in breach of contract and unlust enrichment against
`defendants in Supreme Court, Queens County. The action was assigned
`to the Commercial Divrsion, and by order dated ,lanuary 4, 2019, ruhe
`Honorable Leonar:d Livote granted a conditionaf dismissa.I upon the
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`conveniens, only j-f defendants consent to the
`ground of forum
`non
`jurisdiction of
`People's Republlc of China and accept service
`the
`action brought on the same causes of action.
`of process of a
`new
`The pa.rties subsequent.Iy executed a stipulation dated January
`37, 2A19, wherein defendants consented to the jurisdiction of the
`People's Republic of China as the forum designated by plaintiff.
`On or about JuLy 24,2019, the People's Court of Zhuhai City,
`Xiangzhou Dlstrict, People's Republic of China, granted judgment on
`default in favor of plaintiff and against defendants, in the amount
`of RMB 17.6 milLion, with interest from November 9, 201'l to the
`date of payment at a monthly interest rate of 23 (the Chinese
`Judgment) . The Chinese Judgment also provided that,
`if not
`satisfied withln 10 days of service upon defendantsT any interest
`owed will be doubled, and that defendants shall pay RMB 159,800 in
`legal fees to plaintiff.
`"New York has trad.itionally been a qenerous forum in which to
`enforce judgments for money damages rendered by foreign courts"
`(CIBC Meffon Trust Co. v lulora Hatel Corp., 100 NY2d 215, 221
`[2003]). lndeed, " Ih]istoricalfy, New York courts have accorded
`'recognition to the judgments "rendered in a foreign country under
`[a]bsent some showing of fraud in the
`the doctrine of comity
`procurement of the foreign country judgment or that recognition of
`the judgment would do viofence to some stronq public policy of this
`(Sung Hwan Co., Ltd. v Rite Aid Corp., 7 NY3d 78, 82
`State"'
`12006), quoting Gresch,ler v Greschfer, 51 NY2d 368, 31 6 tL980l).
`CPLR article 53, the Uniform Eoreign Country Money-Judgments
`Recognition Act, was enacted in 1970 (see John Gall-iano, S.A. v
`Stalfion, Inc., 15 NY3d 75, 79 t20f0l, which was intended to codify
`and clarify existing case 1aw appllcable to the recognition of
`foreign country money judgments based on principles of
`to promote the
`international com.ity "and. more importantly,
`efficient enforcement of New York judgments abroad by assuring
`jurisdictions
`judgments would receive
`foreign
`that
`their
`streamlined enforcement here" (CfBC MefLon Trust Co., 100 NY2d at
`22t) .
`
`Pursuant to CPLR 5303, a foreign country money judgment which
`is finaf and conclusive may be enforced in New York by a motion for
`summary judgment in Iieu of complaint. Generafly, a foreign country
`judgment is "conclusive between the parties to the extent that it
`grants or denies recovery of a sum of money" (CPLR 5303), unless a
`ground for non-recognltion under CPLR 5304 is applicable (see John
`Ga7liano, S.A., 15 NY3d at 80). CPLR 5304 (a) provides that "Ia]
`foreign country judgment is not conc.Iusive if
`the judgment
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`was rendered under a system wh.ich does not provide impartial
`trlbunals or procedures compatible with the requirements of due
`process of law" or "the foreign court did not have personal
`jurisdiction over the defendant. " Moreover, CPLR 5304 (b) permits
`discretionary non- recogn it J- on on eight other enumerated grounds,
`The plaintiff
`judgment-creditor bears the prima facie burden
`of establ-ishing that the mandatory grounds for non-recognition, due
`process and personal jurisdictlon
`(see CPLR 5304 [a]), do not
`exist, and the defendant judgment-debtor opposing enforcement bears
`the burden of showing a discretionary ground for non-recognition
`(see CPLR 5304 [b]) does exist and should be app]ied lAttorney Gen.
`of Canada v Gorman, 2 Misc 3d 693, 591 [Civ Ct, Queens County
`20031).
`In the instant matter, defendants do not oppose enforcement of
`the Chinese Judgment upon personal jurisdiction grounds (see CPLR
`5304 [a] [2]), in light of the stipufation dated January 37, 2079.
`Rather, defendants argue that enforcement is precluded, as a matter
`of law, under CPLR 5304 (a) (1), which provides that "[a] foreign
`judgment is not conclusive 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" (see
`Bridgeway Corp. v Citibank, 45 E Supp 2d 2-l 6, 286 [SD NY 1999],
`affd 2OL F3d 134 [2d Cir 2000]).
`*CPLR 5104 (a) (1) does not demand that the foreign tribuna.l-'s
`procedures exact.Iy match those of New York" (CfBC Meffon Trust Co.,
`100 NY2d at 222). "[M]ere divergence from American procedure does
`not render a foreign judgment unenforceab.Ie" (Canadian Imperia)
`Bank of Commerce v Saxony Carpet Co., 899 F Supp 7248, 1252 ISD NY
`1995), affd L04 E3d 352 l2d Ctr 1996); see Parjerte v Scatt
`Meredith Literary Agency, Inc., 7'11 E Supp. 609, 616 ISD NY 199]-l).
`Plaintiff's
`subrnissions demonstrate that the Chinese Iegal
`system comports with the due process requirements and the public
`policy of New York (.Lerchyshyn v Pel.ko ELec., Inc., 281 AD2d 42, 46
`[4th Dept 2001]). Due process of law is not restricted to our laws.
`It presupposes an objective system of rules with no unfair
`surprises, where a prospective litigant
`has notice of
`the
`applicable Iaw and its consequences (see Kim v Co-op. Centrale
`Ra i ffei sen - Boeren leebank 8.A., 364 F Supp 2d 346, 351-352 [SD NY
`20051).
`Defendants, in the actj.on before the Honorable Leonard Livote,
`argued that the interest of substantial justice would be best
`served by adjudication of the matter in the People's Republic of
`China, and they may not now cry foul. Defendants were given ample
`
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`FILED: QUEENS COUNTY CLERK 01/07/2020 12:11 PMFILED: QUEENS COUNTY CLERK 01/17/2020 02:05 PM
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`notice and opportunj.ty to be heard in the Peopfe's Republic of
`China (see CIBC MeTlon Trust Ca., 100 NY2d al 222 ) , Yet made the
`tactical decision to slt on their hands and a.l-]ow a default
`the parties executed a
`judgment to be entered, even after
`stipu.Iation consenting to the jurisdiction of the Peop.l-e's Republic
`of China. Additionally, courts j-n this State will not grant a forum
`non conveniens dismissal, such as in the action before Justice
`Livote, where the alternative forum's judicial system is grossly
`inadequate or given to extreme levefs of partiality,
`In Bridgeway Corp. v Citibank (45 E Supp 2d at 281 ), cited by
`defendants, unlike here, the court noted Liberia was "embro.iled in
`a civil war," and "[t]he country was in a state of chaos, as the
`various factions fought. " The court further noted "the ll,iberian]
`courts that did exist were barely functioning. " As such, the
`Llberian judicial system "did not comport with the requirements of
`due process during the period of civif war" (id, aL 281 [emphasis
`addedl ) . Eurthermore, the 2078 Country Report on Human Rights
`Practices prepared by the United States Department of State is not
`binding on this court.
`Pursuant to CPLR 5304 (b) (2), *[a] foreign country judgment
`the defendant in the proceedings in
`need not be recognized if
`the foreign court did not receive notice of the proceedings in
`sufficient time to enable him to defend." Defendants' argument that
`non-recognition of the Chinese Judgment is warranted under this
`discretionary ground is a.Iso unavailing. The evidence demonstrates
`that the Civil Procedure Law of the Peop]e's Republic of China was
`satisfied and that defendants were o.r shou.Id have been aware of the
`pending Iitigation
`in China.
`Accordingly, plaintiff's
`cross-motion is denied.
`In determining the rate of exchange, the Clerk sha]I use the
`rate seL forth in the I{a -l I Street Journal or other such publication
`on the date of entry of judgment.
`Settle .ludgment.
`
`granted and de fendant s'
`
`mot ion
`
`1S
`
`Dated: Janua ry t,
`
`2A2A
`
`^/1
`
`Denls J
`
`J.S.C
`
`FILED
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`JAN - 7 2020
`
`COUNTY CLERK
`QUEENS COUNTY
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