Regierungspraesident Land Nordrhein Westfalen v. Rosenthal

• Decision Date: 23 October 1962
• Citation: 17 A.D.2d 145,232 N.Y.S.2d 963
• Parties: REGIERUNGSPRAESIDENT LAND NORDRHEIN WESTFALEN, Plaintiff-Respondent, v. Erich ROSENTHAL, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 963

232 N.Y.S.2d 963

17 A.D.2d 145

REGIERUNGSPRAESIDENT LAND NORDRHEIN WESTFALEN, Plaintiff-Respondent, v Erich ROSENTHAL, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Oct. 23, 1962.

Harry Robert Varon, New York City, of counsel (Lothar E. Nachman, New York City, attorney), for appellant.

Fritz Weinschenk, New York City, of counsel (Ellen Gray Williams, New York City, with him on the brief; Hamburger & Weinschenk, New York City), for respondent.

Before BOTEIN, P. J., and BREITEL, RABIN, STEVENS and EAGER JJ.

BOTEIN, Presiding Justice.

Defendant appeals from an order granting plaintiff's motion for summary judgment and denying defendant's cross-motion for judgment on the pleadings dismissing the complaint. Plaintiff is one of the federated states of the Federal Republic of Germany and the issue relates to the effect to be given by our courts to a law of that country and the proceedings taken thereunder. Certain pertinent provisions of that law are set forth in the complaint, and their effectiveness is admitted by the answer. Plaintiff's version of the law is attested by the affidavit of the head of the agency in charge of its administration in plaintiff's jurisdiction and, as defendant has filed no opposing affidavits, will be accepted (Van Slochem v. Villard, 207 N.Y. 587, 590, 101 N.E. 467, 468; Read v. Lehigh Valley R. R. Co., 284 N.Y. 435, 444, 31 N.E.2d 891, 894; cf. Hanna v. Lichtenhein, 225 N.Y. 579, 122 N.E. 625; Pope v. Heckscher, 266 N.Y. 114, 117, 194 N.E. 53, 97 A.L.R. 687). Also, the revocation award, hereafter mentioned, upon which this action is based is recited in the moving papers and bears out plaintiff's construction of the law.

The litigation stems from the enactment by the Federal Republic of Germany of a so-called Federal Indemnification Law designed to afford a measure of compensation for damages suffered by victims of Nazi persecution. Administration of the law is entrusted to the respective federated states. Defendant, now a New York resident and citizen, had formerly been a German national residing within plaintiff's territory. He filed a claim with plaintiff's indemnification office and was granted two awards, the amount of which was paid him in New York City in February 1958.

Section 7 of the Indemnification Law, the content of which is set forth in the complaint and which defendant's answer admits, authorizes the denial of a claim 'if the claimant, in order to obtain indemnification, utilizes improper means, makes, causes to be made, or permits to be made, intentionally or through gross negligence, false or misleading statements concerning the basis for or amount of the damage'. Denial for such reasons is also permitted 'after determination', and 'The return of performances already rendered may be demanded'. After payment of defendant's claim, plaintiff received information from which it concluded that in his application defendant had 'intentionally, or at least grossly negligently' misrepresented material facts. Accordingly, on October 10, 1958, plaintiff through its indemnification office issued a so-called revocation award, which 'was served on the defendant in New York in the manner prescribed by law on November 21, 1958'. This document revoked the monetary awards theretofore granted, gave the factual reasons for the decision to revoke in considerable detail, and recited that defendant was obligated to repay the compensation which he had received. It also apprised the defendant of his right, 'within a time limitation of six months, commencing on the day of service', to contest the revocation in the County Court of Duesseldorf.

Defendant's answer admits 'receipt of a paper purporting to be a revocation of the award to defendant', but, as he took no steps to contest the revocation within the permitted time, plaintiff brought the present suit to recover the payment it had made. The complaint states two causes of action, the first founded on the revocation award, the second sounding in fraud. Special Term's disposition was grounded on the first cause alone and we may confine our consideration similarly. With respect to that cause defendant questions the jurisdictional basis of the award and he impugns its enforceability in any event for the reason that it was not rendered by a court.

Defendant was the 'actor' in the proceedings before the agency whose jurisdiction he attacks (for the sense in which this word is used, see Johnston v. Compagnie Generale Transatlantique, 242 N.Y. 381, 388, 152 N.E. 121, 123, 46 A.L.R. 435). He initiated them by filing in Germany an application which stated that it was being submitted 'pursuant to the federal law for the indemnification of victims of National Socialist persecution'. In addition to affirming the truth of the statements contained in the application, he acknowledged that it was known to him that 'according to paragraph 7 of the law' misstatements made knowingly or with gross negligence might result in denial of the application. He consented to the processing of his application in accordance with the law and to the receipt of the benefits of that legislation. In these circumstances he must be held to have consented to the further proceedings, directly related to his application, which were contemplated by the law he had himself invoked, and to jurisdiction over him for the purpose of such proceedings (Gilbert v. Burnstine, 255 N.Y. 348, 174 N.E. 706, 73 A.L.R. 1453; Matter of Heyman, Inc. v. B. E. Cole Company, 242 App.Div. 362, 275 N.Y.S. 23; Copin v. Adamson (1874), L.R. 9 Ex. 345; Goodrich, Conflict of Laws, 3d ed., p. 198; 1 Beale, Conflict of Laws, § 82.8; Borm-Reid, Recognition and Enforcement of Foreign Judgments, 3 Int'l & Comp. L.Q. 49, 77). As said in Gilbert v. Burnstine (supra, 255 N.Y. p. 358, 174 N.E. p. 709), 'there was an implied submission to the terms of the act itself, and to any rules or procedural machinery adopted by competent authority in aid of its provisions'.

Granted such submission, our courts may nevertheless decline to recognize determinations of tribunals of foreign countries if they contravene our public...