Porisini v. Petricca

• Decision Date: 09 November 1982
• Citation: 90 A.D.2d 949,456 N.Y.S.2d 888
• Parties: Adamo PORISINI and Elizabeth Porisini, Appellants, v. Arcangelo J. PETRICCA, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 888

456 N.Y.S.2d 888

90 A.D.2d 949

Adamo PORISINI and Elizabeth Porisini, Appellants, v. Arcangelo J. PETRICCA, Respondent.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 9, 1982.

Phillips, Lytle, Hitchcock, Blaine & Huber by Rebecca Baritot, Buffalo, for appellants.

John J. Carney, Buffalo, for respondent.

Before DILLON, P.J., and SIMONS, DOERR, MOULE and SCHNEPP, JJ.

MEMORANDUM:

Plaintiffs have moved for summary judgment pursuant to CPLR 3213 for a New York judgment recognizing and enforcing a prior default judgment rendered against defendant in the High Court of Justice, Queens Bench Division, London, England. The judgment is in the amount of $22,188.65 and represents sums due plaintiffs for unpaid rent and telephone bills. Defendant's answering affidavits raised several defenses but Special Term denied the motion solely because it found issues of fact on the merits of plaintiffs' claim and on the jurisdiction of the English court. Having defaulted, however, defendant may not now challenge the merits of plaintiffs' claims collaterally (CPLR 5303). If the High Court of Justice had personal jurisdiction of him, this court is agreed there was no basis to deny the motion.

Plaintiffs' judgment was obtained against defendant, an attorney, after he had been personally served in New York with a summons, statement of claim and accompanying papers pursuant to an order of the English court authorizing such service. Plaintiffs alleged in their claim that defendant and two others rented and occupied an apartment from them in London, England for an agreed rent but that they failed to pay the rent. Defendant did not answer or otherwise appear in the action and a default judgment was entered against him.

Foreign country judgments are recognized as a matter of comity or courtesy and traditionally, New York has been relatively generous in recognizing them provided the judgment is based upon recognized principles of jurisdiction and due process. To protect the interests of New York citizens in foreign states by encouraging reciprocal accommodation in enforcing judgments, New York enacted CPLR Article 53, the Uniform Foreign Money-Judgments Recognition Act in 1970. The statute is said to be expositive of prior New York case law (see, generally, Siegel, N.Y.Civ.Prac., § 472; 9 Carmody-Wait 2d, § 63:244; 6 Weinstein-Korn-Miller, N.Y.Civ.Prac., p 5303.01). Its provisions govern this proceeding.

The Act authorizes the recognition of judgments if jurisdiction is acquired pursuant to the provisions of section 5305. If personal jurisdiction is acquired in any manner provided in subdivision (a), i.e., personal service within the foreign state, voluntary appearance, etc., the foreign judgment must be recognized. None of the provisions of subdivision (a) apply here but that subdivision is not exclusive. Subdivision (b) of the same section permits the court to recognize other bases of jurisdiction and New York may, and appropriately should, recognize a foreign judgment predicated on any jurisdictional basis it recognizes in its internal law (see Siegel, Practice Commentaries, McKinney's Consolidated Laws of N.Y., § 5305). That being so, long arm jurisdiction was available to plaintiffs. CPLR 302(a)(4) permits the courts of New York to acquire personal jurisdiction over a non-domiciliary who "owns, uses or possesses any real property situated within the state" whether or not the non-domiciliary was using the property at the time the action was commenced (see Genesee Scrap & Tin Baling Corp. v. Lake Erie Bumper Plating Corp., 57 A.D.2d 1068, 395 N.Y.S.2d 826; Tebedo v. Nye, 45 Misc.2d 222, 256 N.Y.S.2d 235). Accordingly, under New York law a similar action for unpaid rent could be maintained by a New York resident by personal service on a non-domiciliary former tenant (see Hempstead Medical Arts Co. v. Willie, Sup Ct. Nassau County, NYLJ 12-9-63, p. 18, col. 6). By parity of reasoning, the jurisdiction of the English court should be recognized in this case if defendant used plaintiffs' apartment. Since he admits in his answering papers that he was in London at the time complained of and lived in plaintiffs' apartment, the predicate for personal jurisdiction is established beyond dispute.

The dissenters contend that defendant was only a guest of others and that those others, not he, attorned to plaintiffs. That indeed might be a valid defense on the merits if plaintiff had chosen to advance it in the English courts. Since he did not, he may not challenge the merits of plaintiffs' claim in this proceeding (see generally, Riehle v. Margolies, 279 U.S. 218, 49 S.Ct. 310, 73 L.Ed. 669). Insofar as the dissenters rely on the quotation from a Pennsylvania District Court, the court there found personal jurisdiction under a long arm statute similar to New York's. Other Pennsylvania courts have interpreted that state's long arm statute broadly also to acquire jurisdiction over non-residents (see Romig v. Ripley Mfg. Corp., 366 Pa. 343, 77 A.2d 360; and see generally, Note, Ownership, Possession and Use of Property as a Basis of In Personam Jurisdiction, 44 Iowa L.Rev. 374).

Defendant contends further that the judgment should be vacated because it was obtained by fraud (CPLR 5304, subd. b[3] ) and that the New York courts should, in the exercise of their discretion, refuse to recognize a judgment on such grounds. The "fraud" claimed by defendant in his answering affidavit is that plaintiffs have alleged an "oral agreement (the lease) which never took place." Defendant also contends that the tenancy was the subject of a secret written agreement with another, a Swedish national named Rispoli who now lives in Nigeria and that Rispoli paid the rent. Neither of those allegations allege fraud and neither is supported by the accompanying papers. In any event, those allegations also attempt to challenge the merits of the action and are issues which are foreclosed to the recognition court once jurisdiction is found (CPLR 5303). Another issue argued on appeal appears in an affidavit from Rispoli in which he claims that he was the lessor of the premises and that the lease was part of a fraudulent scheme by plaintiffs to avoid taxes. His allegations are...