Ladup Ltd. v. Jamil
| Decision Date | 25 June 1987 |
| Citation | 517 N.Y.S.2d 14,131 A.D.2d 382 |
| Parties | LADUP LTD., Plaintiff-Respondent, v. Ben JAMIL etc., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
E.H. Burnbaum, New York City, P.J. Zoeller, for plaintiff-respondent.
A.S. Kronick, New York City, for defendant-appellant.
Before KUPFERMAN, J.P., and SANDLER, SULLIVAN, KASSAL and SMITH, JJ.
Order, Supreme Court, New York County (Francis N. Pecora, J.), entered September 22, 1986, which granted plaintiff's motion for summary judgment in lieu of complaint, pursuant to CPLR 3213, and the judgment (same court), entered thereon October 22, 1986, unanimously reversed, on the law, without costs, the judgment vacated and the motion denied.
This motion for summary judgment in lieu of complaint was commenced to enforce a foreign judgment in the sum of L 6045.55 (English pounds) in favor of plaintiff against Ali Gamel. That action had been instituted by plaintiff on July 20, 1979 in the High Court of Justice, Queens Bench Division, London, England, to recover on four checks, issued by Ali Gamel in plaintiff's casino in London on October 24, 1978. After demand made on defendant Jamil to pay, this action on such judgment was instituted, plaintiff contending that the British judgment was entitled to recognition and enforcement in New York under CPLR 5302 and 5303.
In opposing the motion, defendant denied that (1) he was the individual indebted to plaintiff, (2) he was or ever had been known as Ali Gamel or Eli Gamel, submitting for comparison his photograph and an article purportedly containing a picture of Ali Gamel, (3) the signature on the checks as his, and (4) he had ever been served with the summons and complaint in the British action.
Special Term granted summary judgment to plaintiff, relying upon the absence of any statement by Jamil that he was not in England at the time the debt was incurred and his failure to submit his passport, which would reflect his whereabouts at that time. The photographs were found not to be conclusive since the person in the picture was not positively identified as Ali Gamel.
In our view, on this record, especially bearing in mind the issue-finding function of the court, there are factual issues which preclude summary judgment relief, inter alia, whether Ben Jamil is the Ali Gamel against whom the British judgment was obtained. The supporting papers, consisting solely of an attorney's affidavit, who is without...
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