Diners Club, Inc. v. Makoujy

• Decision Date: 04 September 1981
• Citation: 110 Misc.2d 870,443 N.Y.S.2d 116
• Parties: DINERS CLUB, INC., Plaintiff, v. Jack MAKOUJY, a/k/a Jack Makovjy, Defendant.
• Court: New York City Court

Page 116

443 N.Y.S.2d 116

110 Misc.2d 870

DINERS CLUB, INC., Plaintiff, v. Jack MAKOUJY, a/k/a Jack Makovjy, Defendant.

Civil Court of the City of New York,

New York County, Special Term,

Part I.

Sept. 4, 1981.

Richard Elliott of Kazlow & Kazlow, New York City, for plaintiff.

Austrian, Lance & Stewart, P. C., New York City, for defendant.

BRUCE McM. WRIGHT, Judge.

In this action to enforce a Pennsylvania judgment against the defendant, a New York resident, the plaintiff moves for an order pursuant to United States Code, Vol. 28, § 1738, granting summary judgment to the plaintiff. The moving affidavit is authored by counsel for the plaintiff and, presumably, he relies upon the sense of Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718, where affidavits in support of summary judgment, sworn to by counsel without personal knowledge, are tolerated because they "serve as the vehicle for the submission of acceptable attachments which do provide 'evidentiary proof in admissible form,' e. g., documents, transcripts."

The defendant has caused an answer to be interposed in which he couples denials with six affirmative defenses. They assert that there was no personal jurisdiction over defendant in Pennsylvania; the complaint fails to state a cognizable claim; there was no subject matter jurisdiction in Pennsylvania; both the Statute of Limitations and laches fraud in the State of Pennsylvania and upon the court there; and an absence of notice to the defendant.

The exhibits annexed to the moving papers show that the defendant here was one of three defendants in the Pennsylvania process. Defendant was served by registered mail and he was the only defendant against whom judgment was entered in the sum of $8,345.22.

The judgment is granted.

The plaintiff has supplied the oath of an expert on Pennsylvania law. It appears that Pennsylvania law was satisfied in terms of jurisdiction. The defendant does not contest the assertion that he signed a personal guarantee; that the court had jurisdiction of the corporation of which the defendant was a vice-president and that the statute is clear that that circumstance gave the defendant some connection with the corporation in Pennsylvania. Neither can the defendant defeat jurisdiction by claiming he did not receive notice of the intention of the plaintiff to cause judgment to be entered when he refused to claim the registered mail addressed to him. He does not deny the accuracy of his address.

The documents before the court show that Pennsylvania law was followed assiduously and exactly. § 1, Article 4 of the United States Constitution provides that full faith and credit be given to the judicial proceedings of a sister State ( In Re Estate of Horton, 91 Misc.2d 885, 398 N.Y.S.2d 1013.) Such a judgment is presumed to be valid and is entitled to prima facie recognition, the presumption being that the foreign State proceeded to judgment only after duly acquiring jurisdiction of the subject matter and of the parties. 9 Carmody-Wait 2d, 63:248, p. 274; and see Overmyer v. Eliot Realty, 83 Misc.2d 694, 371 N.Y.S.2d 246. The rule of full faith and credit is applied even where a judgment has been obtained by default, absent proof of fraud or collusion (Riehle v. Margolies, 279 U.S. 218, 225, 49 S.Ct. 310, 313, 73 L.Ed. 669.) Any fraud claimed must be extrinsic fraud on the court and relate to matters other than issues that could have been litigated.

Defendant's effort to attack collaterally the Pennsylvania judgment, imposes upon him a stern and heavy burden. He must show with clear and explicit proof that the judgment is invalid due to a lack of both personal and subject matter jurisdiction (9 Carmody-Wait 2d, 63:248, p. 274.) In Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157 96 L.Ed. 146, the Supreme Court described the burden of one attacking the propriety of a judgment arraigned as invalid, as one that "rests heavily upon the assailant."

Any inquiry by this court analyzing the validity of a judgment obtained elsewhere is limited to a determination of the jurisdictional issues as they are raised by the defendant (Mansfield State Bank v. Cohn, 95 Misc.2d 326, 407 N.Y.S.2d 373.) The controlling jurisdictional statutes are those of Pennsylvania, the forum where the judgment was entered (Gladding Corporation v. Balco-Pedrick Parts Corp., 76 App.Div.2d 1, 429 N.Y.S.2d 940) and not that of New York. Naturally, the foreign statutes conferring jurisdiction must comport with due process as measured by International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 and Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283.

It is interesting that with all of the denials and elaborately pleaded defenses, the defendant never troubles to mention his status as vice president of the Kerrin Corp., one of the defendants named in the Pennsylvania action. This is of some importance since the defendant is asking that the New York court look into the jurisdictional frailty...