Biel v. Boehm
| Decision Date | 18 May 1978 |
| Citation | 406 N.Y.S.2d 231,94 Misc.2d 946 |
| Parties | Walter BIEL, Plaintiff, v. Joachim BOEHM, Defendant. |
| Court | New York Supreme Court |
Motion for summary judgment in lieu of a complaint is granted.
This action is brought on by the plaintiff, Walter Biel, based upon a judgment issued by the District Court of Stzehoe, Federal Republic of Germany on October 25, 1973 against Heinrich Plueckhahn for the sum of $16,778.75 with 4% interest thereon from the 16th day of March, 1973. On June 22, 1976, after the death of Heinrich Plueckhahn, this same tribunal ordered that the execution on this judgment may be had against Joachim Boehm, the defendant herein and legal successor of Heinrich Plueckhahn, the original judgment debtor.
The plaintiff has supplied the Court with an affidavit of Dr. Alfred Goldberger, Esq., who translated and interpreted the judgment of the District Court of Stzehoe. Dr. Goldberger was born and educated in Germany and is admitted to the German Bar and thus would be considered for this motion an expert on German Law. He affirms that the judgment is final and conclusive as to the merits under German Law, and it directs Heinrich Plueckhahn to pay the plaintiff the sum of $16,778.75 plus 4% interest from March 15, 1973. The District Court was a Court of competent jurisdiction because the complaint involved an amount in excess of DM 1,500 and because the defendant resided within the boundaries of the Court's authority. (Sections 23 and 71 of the German Act concerning the Organization of the Courts). Further, under Sections 325 and 727 of the German Code of Civil Procedure, execution may be had against the successor-in-law of a judgment debtor, in this case Joachim Boehm, provided the succession is proven by submission of a public document. The certificate of Inheritance, a copy of which has been supplied to this Court, wherein the Surrogate Court Elmshorn certified that Joachim Boehm was the sole beneficiary and heir of Heinrich Plueckhahn, is such a public document. Thereafter the Court, which rendered the original judgment against Heinrich Plueckhahn, issued an exemplified copy of the judgment to the plaintiff permitting execution on the judgment against the successor-in-law of the original judgment debtor. This exemplified copy of the judgment was served on Joachim Boehm on July 5, 1975. Therefore, the judgment of the District Court of Stzehoe under German Law is final, conclusive and enforceable against Joachim Boehm.
Presently, a motion has been made by the plaintiff based upon this foreign judgment for summary judgment in lieu of a complaint. Prior to the service on the defendant personally in Germany of the summons, notice of motion and papers, an order of attachment was granted ex parte against the defendant on certain properties located in New York State on December 21, 1977. This attachment was sought in order to gain quasi-in-rem jurisdiction over the defendant under CPLR 314(3). The issue presented to this Court is three-fold: (1) does the plaintiff with a foreign Country judgment with in personam jurisdiction need the attachment process and quasi-in-rem jurisdiction to enforce the judgment against properties located in New York? (2) what effect does the Shaffer v. Heitner case, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683, have upon the status of the quasi-in-rem jurisdiction as applied in this case? and (3) if the jurisdiction is necessary and available, should this Court grant the motion for summary judgment in lieu of a complaint based upon this foreign judgment?
As to the first issue, it seems clear that a plaintiff armed with a foreign Country judgment must establish some basis of jurisdiction over the defendant before enforcing the judgment. Before reaching the jurisdictional problem, a foreign Country judgment must pass muster as to other prerequisite standards before it is recognized in New York. The judgment must be final, conclusive and enforceable where rendered (CPLR 5302) and then it is conclusive between the parties to the extent that it grants or denies recovery of a sum of money (CPLR 5303). The foreign Country judgment has been shown to fulfill these statutory prerequisites and thus is recognized and accepted in the State of New York. However, recognition is only the first step in the process of enforceability of the judgment against properties of the defendant located in this State. Under Sections 5401 and 5402 of the CPLR, "a copy of any foreign judgment authenticated in accordance with an act of congress or the statutes of this state may be filed within ninety days of the date of authentication in the office of any county clerk of the state . . .
The clerk shall treat the foreign judgment in the same manner as a judgment of the Supreme Court of this State. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of the Supreme Court of the State and may be enforced or satisfied in like manner. " In this situation, the only issue is whether proper jurisdiction had been established under the foreign judgment so as to bind the defendant. New York will then recognize the judgment's validity and allow the use of its enforcement procedures through the mere filing of it in any county in the state. However, this statute does not apply to foreign Country judgments, whose status is controlled by Article 53 of the CPLR. Therefore, New York State discriminates against the foreign Country judgments and places a more substantive burden upon the plaintiff whether a New York resident or a foreigner in attempting to enforce his judgment. Under Section 5303, "a foreign judgment is enforceable by an action on the judgment, a motion for summary judgment in lieu of a complaint, or in a pending action by counterclaim, cross-claim or affirmative defense. " Thus, under the above procedure, a plaintiff, whether a resident or non-resident of New York, with a recognized foreign Country judgment may only enforce this judgment after securing some jurisdictional basis over the defendant in this State.
Thus faced with the obligation of securing a jurisdictional basis, the plaintiff obtained an ex parte order of attachment under Article 62 of the CPLR of...
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...money judgment by asserting it as a the defense in a pending civil case. Plaintiffs are correct that in Biel v. Boehm, 94 Misc.2d 946, 949, 406 N.Y.S.2d 231 (Sup.Ct.N.Y.Cy.1978), the court stated that "recognition is only the first step in the process of enforceability of the judgment again......
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...basis is required in the recognizing state (as opposed to in the rendering state or country) is the case of Biel v Boehm (94 Misc.2d 946, 948-949 [Sup Ct, Suffolk County]). As support for that proposition, Biel (supra, at 950-951) cites a footnote in the landmark case of Shaffer v Heitner (......
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