Landauer Limited, Appellant,v.Joe Monani Fish Co., Inc., Respondent.

Brief

N.Y.January 16, 2014

To Be Argued By: DIANE WESTWOOD WILSON Time Requested: 30 Minutes Bronx County Clerk’s Index No. 260550/10 APL-2013-00103 Court of Appeals STATE OF NEW YORK LANDAUER LIMITED, Plaintiff-Appellant, -against- JOE MONANI FISH CO., INC., Defendant-Respondent. BRIEF OF PLAINTIFF-APPELLANT LANDAUER LIMITED d DIANE WESTWOOD WILSON DEBORAH A. ELSASSER CLYDE & CO US LLP The Chrysler Building 405 Lexington Avenue New York, New York 10174 Telephone: (212) 710-3900 Facsimile: (212) 702-4626 Attorneys for Plaintiff-Appellant Landauer Limited July 1, 2013 DISCLOSURE PURSUANT TO 22 NYCRR 500.1(F) LANDAUER LIMITED states that it has no corporate parents, subsidiaries or affiliates. LANDAUER LIMITED is wholly owned by Largus AB, a company incorporated in Sweden. The active wholly owned subsidiaries of LANDAUER LIMITED are Sea Products International Limited, Hanson & Orth Fibers Inc. and Abaca International Limited, all incorporated in Great Britain. i TABLE OF CONTENTS JURISDICTIONAL STATEMENT…………………………...……………...…....1 PRELIMINARY STATEMENT…………………………………….……..……....1 STATEMENT OF QUESTIONS PRESENTED……………….………….………2 SUMMARY OF ARGUMENT………………………………………………...…..3 STATEMENT OF FACTS…………………………………………………...….....5 PROCEDURAL HISTORY IN THE LOWER COURTS………….………….…..9 ARGUMENT……………………………………………………….………..……15 I. REVERSAL IS NECESSARY AND APPROPRIATE BECAUSE THE COURTS BELOW FAILED TO APPLY BINDING NEW YORK PRECEDENT AND NEW YORK'S PUBLIC POLICY OF ENFORCEMENT OF MONEY JUDGMENTS RENDERED BY FOREIGN COURTS………...............................................…….……....15 A. Galliano Required the Lower Courts to Enforce the English Money Judgment Because Monani Had Notice of the Proceedings………………………………………..………..…....15 B. The Lower Courts Erred in Failing to Consider the Uncontroverted Admissions of Monani's Counsel Establishing Notice of the English Proceedings……………………………………………..19 C. The English High Court Judgment Is Enforceable Against Monani in Accordance with CPLR Article 53……………………………23 1. The English High Court Judgment Meets the Requirements of CPLR §§ 5302 and 5303………….....23 2. Monani Has No Basis to Invoke a Ground for Non- Recognition under CPLR § 5304(a)…………………...24 ii 3. Jurisdiction in the English Courts Was Agreed in Accordance with CPLR § 5305(a)(3)……………….…25 4. Monani Has No Basis to Invoke a Ground for Non- Recognition under CPLR § 5304(b)………………...…27 II. THE COURTS BELOW IMPROPERLY APPLIED CPLR § 311 IN LIGHT OF THIS COURT'S MANDATE IN FASHION PAGE………………………………………………………………..….29 III. LANDAUER IS ENTITLED TO SUMMARY JUDGMENT ENFORCING THE ENGLISH JUDGMENT AS A MATTER OF NEW YORK LAW AND PUBLIC POLICY…………………………………33 CONCLUSION……………..……………………………….…………..…….….35 iii TABLE OF AUTHORITIES Cases: Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986)……...…33 Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974)…………………....33 Arch-Bilt Container Corp. v. Interboro Mut. Indem. Ins. Co., 119 A.D.2d 713, 501 N.Y.S.2d 127 (2d Dep't 1986).…………………………………………………....21 Arvanitis v. Bankers Trust Co., 286 A.D.2d 273, 729 N.Y.S.2d 706 (1st Dep't 2001)...……………………………………………………………..…..31 Assured Guaranty (UK) Ltd. v. JP Morgan Investment Mgmt., 80 A.D.3d 293, 915 N.Y.S.2d 7 (1st Dep't 2010)………………………………………………….…..21 Barone v. Guthy, 295 A.D.2d 460, 744 N.Y.S.2d 673 (2d Dep't 2002)……….…21 Bergstein v. Board of Education, 34 N.Y.2d 318, 357 N.Y.S.2d 465 (1974)…………………………………………………………………………..…21 Charming Shoppes, Inc. v. Overland Constr., Inc., 186 Misc. 2d 293, 717 N.Y.S.2d 860 (N.Y. Sup. Ct. Monroe Co. 2000)…………………………………………...28 CIBC Mellon Trust Company v. Mora Hotel Corp., 100 N.Y.2d 215, 762 N.Y.S.2d 5 (2003)………………………………….……………..…15, 24, 34 Collini v. Turner Const. Co., 129 N.Y.S.2d 485 (Kings Co. 1954)…………........31 Dunn v. Pallett, 66 A.D.3d 1179, 889 N.Y.S.2d 682 (3d Dep't 2009)……….…..30 Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265, 428 N.Y.S.2d 890 (1980)…………………………………………………..…………………....passim Forray v. New York Hosp., 101 A.D.2d 740, 475 N.Y.S.2d 57 (1st Dep't 1984)……………………………………………………………….….33 Freud v. St. Agnes Cathedral School, 64 A.D.3d 678, 881 N.Y.S.2d 908 (2d Dep't 2009)…………………………………………………………………..31 iv Galliano v. Stallion, Inc., 15 N.Y.3d 75, 904 N.Y.S.2d 683, cert denied, 131 S. Ct. 288 (2010)………………………………………………………...passim Horton v. Smith, 51 N.Y.2d 798, 433 N.Y.S.2d 92 (1980)…………………...…..20 Isaacson v. Karpe, 84 A.D.2d 868, 445 N.Y.S.2d 37 (3d Dep't 1981)………...…20 Link v. Wabash Railroad Co., 370 U.S. 626 (1962)……………………………....21 Massaro Elec. Co. v. CMG-Constr. Mgmt, 180 Misc. 2d 352, 689 N.Y.S.2d 361 (N.Y. Dist. Ct. Nassau Co. 1999)………………………………………………....28 Property Clerk, NYC Police Dep't v. Seroda, 131 A.D.2d 289, 521 N.Y.S.2d 233 (1st Dep't 1987)………………………………………..….......22 Salahuddin v. Coughlin, 781 F.2d 24 (2d Cir. 1986)………………………...…...21 Strasburger v. Rosenheim, 234 A.D. 544, 255 N.Y.S. 316 (1st Dep't 1932)………………………………………………………………..….33 Society of Lloyd's v. Ashenden, 233 F.3d 473 (7th Cir. 2000)……...……………...25 Society of Lloyd's v. Grace, 278 A.D.2d 169, 718 N.Y.S.2d 327 (1st Dep't 2000)……………………………………..........................................25, 26 Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, 77 A.D.3d 197, 906 N.Y.S.2d 231 (1st Dep't 2010)……………………………………………….…...21 Other Authorities: New York Civil Practice Law & Rules § 311………………………..………passim New York Civil Practice Law & Rules § 3213…………………………...………..1 New York Civil Practice Law & Rules § 5302-5305……………..............….passim New York Civil Practice Law & Rules § 5602…………………………...………..1 1 JURISDICTIONAL STATEMENT This Court has jurisdiction over this appeal because the Decision, which was made on the law, was an order of the Appellate Division affirming a final determination and denial of the motion for summary judgment in lieu of complaint, and thereby denied enforcement of the English High Court Judgment obtained by Plaintiff-Appellant Landauer Limited [Landauer] against Defendant-Appellee, Joe Monani Fish Co., Inc. [Monani], which was the only relief sought by Plaintiff. See CPLR 5602(a)(1). The issues presented were preserved for review as Landauer raised the issues in its Motion for Summary Judgment in Lieu of Complaint and supporting papers and at the traverse hearing before the IAS court (see e.g., R.3, 17, 20, 113, 182, 221, 246, 251, 261, 317, 323), and its briefs and Motion for Interim Relief filed in the Appellate Division. See R.331. PRELIMINARY STATEMENT Plaintiff-Appellant Landauer respectfully submits this brief on appeal from the First Department's December 27, 2012 Decision affirming the trial court's decision entered November 17, 2011, denying without prejudice Landauer's motion for summary judgment in lieu of complaint pursuant to CPLR §§ 3213 and 5303 seeking enforcement of a money judgment of the High Court of Justice, Queen's Bench Division, Commercial Court, England rendered against Monani in the amount of $368,755.49. Basing their decisions on the trial court's faulty finding of 2 lack of technical service of process and in disregard of the evidence of Defendant's notice of the English action, the courts below failed to apply binding precedent requiring enforcement of this final and conclusive money judgment. STATEMENT OF QUESTIONS PRESENTED 1. Whether, in light of this Court's binding precedent in Galliano v. Stallion, Inc., 15 N.Y.3d 75, 904 N.Y.S.2d 683, cert. denied, 131 S. Ct. 288 (2010) ("Galliano"), and Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265, 428 N.Y.S.2d 890 (1980) ("Fashion Page"), holding that a foreign judgment is to be enforced unless fundamentally unfair, the courts below erred when they denied enforcement of this foreign money judgment in light of the record evidence that the Defendant had actual notice of the English High Court proceedings, which sought damages for Defendant's breach of multiple, consecutive contracts providing for jurisdiction in the courts of England, and deliberately allowed the judgment to be entered against it on default. 2. Whether, where the Defendant had actual notice of the English High Court proceedings seeking breach of contract damages pursuant to which the Defendant deliberately allowed a default judgment to be entered by the foreign court, the court below could properly deny enforcement based upon the trial court's conclusion that technical service of process was not properly made and ignore this Court's notice holdings in Galliano and Fashion Page. 3 SUMMARY OF ARGUMENT The lower courts' refusal to enforce Landauer's judgment against Monani based on a finding of lack of technical service of process and deliberate disregard of the binding precedent of this Court, as well as the strong public policy of this State to enforce foreign judgments, calls out for reversal by this Court. The decisions of the lower courts were in error because they (1) ignored the fact that the parties agreed by contract to submit to the jurisdiction of the English court for disputes under the contract; (2) ignored the testimony at the traverse hearing confirming that Monani's "head bookkeeper" accepted without hesitation or objection service of legal papers and that those papers were received by the company owner and President, Edward Monani; (3) ignored the undisputed evidence that Monani's counsel of record was well aware of the English High Court proceedings before the default judgment was entered and advised Landauer's counsel that "we will allow the London lawsuit to proceed without Monani's appearance" and "will file our own lawsuit in New York arising from the claims" [Galliano]; (4) ignored (in the court below) Monani's counsel's acknowledgment of actual notice on the part of Edward Monani; (5) disregarded New York policy in favor of enforcing foreign money judgments; and (6) ignored this Court's binding precedent admonishing not to read CPLR 311 in a "narrow and technical manner" [Fashion Page]. 4 As this Court reaffirmed in Galliano, where a defendant has agreed to the jurisdiction of the foreign court by contract (as did Monani in all of the contracts at issue), lack of jurisdiction is not a defense to recognition of the foreign judgment unless the defendant did not receive notice of the foreign court proceedings; instead, the New York court's inquiry should be limited to whether the foreign court's exercise of jurisdiction over the defendant was "fundamentally unfair." See Galliano, 15 N.Y.3d at 82, 904 N.Y.S.2d at 686. Despite a Record replete with evidence that Monani was on notice of the English action, the Decision below affirmed the denial of summary judgment in lieu of complaint in contravention of both Galliano and Fashion Page. The Decision below is a significant departure from this Court's precedent and from the application of the Uniform Foreign Money Judgments Recognition Act, which has been adopted by the majority of the States. This Court should make clear to the lower courts and to those contemplating doing business with companies or persons subject to the jurisdiction of the New York courts, that New York enforces foreign judgments where, as here, Defendant agreed to the jurisdiction of the foreign court and knowingly allowed a default judgment to be taken. Plaintiff should be granted enforcement of the money Judgment rendered in the English breach of contract action that Defendant chose to ignore. 5 The Decisions of the lower court should be reversed and the English Judgment enforced by this Court. Ordering enforcement will ensure that the lower courts properly and faithfully apply the Galliano and Fashion Page decisions in future cases when faced with the question of whether New York courts will enforce a foreign judgment obtained after the defendant opted not to appear despite actual notice of the action. STATEMENT OF FACTS Between August 29, 2007 and November 14, 2007, Landauer, a purveyor of frozen products and a citizen of the United Kingdom, and Monani, a wholesale seafood dealer incorporated and operating in the State of New York, entered into successive sales contracts [the "Contracts"] inducing Landauer to repeatedly deliver, at the request of Monani, multiple containers of frozen seafood valued in excess of $350,000. R.182-183 (Affidavit of Stephen Brown, sworn to the 8th day of March 2010 [Brown Affidavit] ¶¶ 4-10). Despite Monani placing the series of orders and indisputably accepting successive deliveries, Monani failed and refused to pay for the contracted delivery of any of the containers. R.113-114 (Affidavit of Andrew Preston, sworn to the 11th day of August 2010 [Preston Affidavit], ¶ 8); R.182, 184 (Brown Affidavit ¶¶ 14-16). After several attempts to informally resolve the dispute, Monani's representative (counsel of record in the courts below and in this Court) advised 6 Landauer by email dated September 5, 2008: "Please file and serve your lawsuit." R.182, 185, 207. On April 15, 2009, in accordance with the terms of the Contracts, Landauer commenced a proceeding against Monani in the English High Court seeking a judgment for unpaid invoices for goods delivered totaling $ 368,755.49. R.182, 185, Brown Affidavit ¶ 21. Landauer and Monani expressly agreed and consented to the jurisdiction of the Courts of England and application of English law pursuant to the terms and conditions of the Contracts. Id. The complaint in the English action was served upon Monani on May 13, 2009, by hand delivery to a Monani employee by the name of Cesar A. Cardenas. R.162. Mr. Cardenas accepted the papers and, according to the process server, identified himself as the company's "comptroller". R.113-114, Preston Affidavit ¶¶ 10-12; see also R.274-278. While Mr. Cardenas subsequently disputed that he gave his title as comptroller, Edward Monani testified at the traverse hearing that Mr. Cardenas was Monani's "head bookkeeper" R.307. Mr. Cardenas testified regarding his responsibilities and that he worked for Monani for 5 years. R.264- 265. Despite receipt of the papers by Monani (through personal delivery to Defendant's head bookkeeper) and an ongoing dialogue over the ensuing five weeks regarding the documents between Landauer's English counsel and Monani's counsel of record here, Defendant chose not to appear in the English action. R.221, 223-224 (Reply Affidavit of Andrew Preston, sworn to the 11th day of 7 November 2010 [Preston Reply Affidavit] ¶ 12-13). Landauer's counsel in England held off moving for default for several weeks while he and Monani's counsel engaged in settlement discussions. When these discussions proved futile, Landauer's counsel advised Monani's counsel that Landauer was going to proceed with the English action and seek a default against Monani. R.223-226. In a series of emails between Landauer's English counsel and Monani's counsel of record, Monani's counsel repeatedly acknowledged the existence of the English action and his awareness that Landauer would move for default against Monani. R.230-245. These email communications took place after personal service was made on Defendant and continued until Landauer moved for default in the English High Court. R.221-245. The email communications, which never were refuted by Monani or its counsel, conclusively establish that Monani's counsel had a copy of the papers, knew that the English High Court was asserting jurisdiction over the matter, that Landauer intended to move for default if Monani did not appear in the action, and that Monani intended not to appear. See id. The absurdity of Monani's denial of notice of the English proceedings is best illustrated by the following May 26, 2009 email from Monani’s counsel of record to Mr. Preston: "[M]y client never received those 'terms and conditions' which, seemingly were added to your London-filing after the fact…Moreover it does appear that your "agreement" requires arbitration, so I am unclear on how you filed a lawsuit! Finally, I believe we will allow your London lawsuit to proceed without our appearance, while we will file our own lawsuit in New York arising from the claims that 8 you, no doubt, are now fully aware. Based on the ridiculous nature of this action, coupled with the extreme expense both sides will incur, I proposed we should try to work this out….") R.239 (emphasis added). When the parties were unable to reach resolution, Landauer applied to the English court for the default judgment, which was entered on June 24, 2009, awarding $ 368,755.49 as damages for Monani's breaches of contract [Judgment]. R.22 (Judgment of the English High Court, annexed as Exhibit "1" to the Affirmation of Diane Westwood Wilson dated August 19, 2010 [Wilson Aff.]). The following timeline demonstrates that Monani had ample notice and opportunity to prevent the default but deliberately chose to risk the consequences of not appearing in the English court proceedings: May 13, 2009 Service of the English High Court papers on Monani's "head bookkeeper" Cesar Cardenas at Monani's place of business. R.274-278. On or before May 25, 2009 Monani's lawyer placed a call to Landauer's English counsel. R.237 (email dated May 26, 2009 6:49AM BST from Landauer's counsel acknowledging call). May 26-29, 2009 Emails exchanged between Landauer's English counsel and counsel of record for Monani in New York acknowledging commencement of the English High Court proceedings. R221-224; 237- 239 (Monani: "we will allow your London lawsuit to proceed without our appearance"; Landauer: "If they don't participate a default judgment will be obtained against them and this is immediately 9 registerable in the United States. Our New York office are ready to do this straight away and an enforcement will be taken against your client's assets.") June 1-3, 2009 Emails and phone calls between counsel for Landauer and Monani regarding the claim, the lawsuit and Landauer's intention to take a default. R.224-225; 241-243. June 15, 2009 Additional emails between counsel discussing the claim, including intent to move for default and that service need not be done through diplomatic channels under the Hague Convention. R.225-226; 230-232 (Landauer: "We agreed to delay the entering of a default judgment against your clients … to enable settlement discussions to progress. If your clients now have no interest in the settlement discussions, then we will progress the litigation; Monani:"I'll tell you what. Proceed as you see fit.") June 24, 2009 Default money judgment entered against Monani. PROCEDURAL HISTORY IN THE LOWER COURTS Trial Court Proceedings After Monani refused to pay the English Judgment, Landauer filed, in the IAS court, a motion for summary judgment in lieu of complaint. R.17-209. Landauer's motion was supported by (1) the Brown Affidavit, which set forth the basis of Landauer's claim against Monani (R.182); (2) the Preston Affidavit, which set forth the procedural history of the English court proceedings and the basis for jurisdiction by the English High Court over Monani (including the existence of the 10 English court forum clause in the contracts between Landauer and Monani and the fact that Monani allowed a default to be taken in the English High Court) (R.113, 115), and (3) the Wilson Affirmation, which attached the Affidavit of process server James Cagney, attesting to personal service of the English court proceedings on Monani's employee, Cesar Cardenas (R.20, 62). Landauer's motion also was supported by a Memorandum of Law setting forth the standard and argument for recognition and enforcement of the English Judgment under CPLR §§ 5302, 5303, 5304 and 5305. Much to Landauer's surprise, Monani argued in opposition that Monani had no knowledge of the English action before the default was taken. R.211, 213. Monani argued that service of process was not proper because the papers were delivered to Defendant's bookkeeper, Cesar Cardenas, who was not the "comptroller" and allegedly was not authorized to accept service of process on behalf of the company. R.213. Landauer replied that service to the Monani employee was proper and that notice by Defendant could not be denied because of the email exchanges between counsel, which were submitted with the Preston Reply Affidavit. R.221, 245. These communications directly refuted Monani's assertions in it opposition papers that it had no knowledge or notice of the English action and would have defended the action had it been aware of the proceedings. 11 Notwithstanding the clear evidence of notice to Monani, the trial court ordered a traverse hearing to determine whether service of process was properly made on Monani. At the hearing, the process server, James Cagney, testified that on May 13, 2009, he and a colleague went to Monani's place of business at the Hunts Point Fish Market in the Bronx, and that Monani's office was pointed out to the process server and his colleague. R.276-278. The process server went inside to find only one person present, seated at a desk, who identified himself as Cesar Cardenas, the company comptroller. R.277-278. Mr. Cagney testified that he identified himself; that he advised Mr. Cardenas that he had legal papers to serve on Joe Monani Fish Company and that Mr. Cardenas accepted the papers without hesitation or objection. Id. Mr. Cagney's license and log book, duly noting the date and place of service, were admitted into evidence at the hearing. R.275-276. Mr. Cagney identified Mr. Cardenas in the courtroom as the person who he served that day. R.276. Mr. Cagney's version of events was confirmed by Stanton Cagney, a retired process server, who accompanied James Cagney and personally observed service of the papers on Cesar Cardenas. R.296-297. Stanton Cagney also testified that Mr. Cardenas unequivocally accepted service of the properly identified legal documents. R.297. 12 Mr. Cardenas testified with respect to his employment duties: "I keep the books; I write the checks" (R.265) and that he served as cashier because he "receives the money." R.269. Mr. Cardenas did not deny having been served with the papers. R.266. Mr. Cardenas's boss, Edward Monani, the company owner and President, confirmed the company location in the Hunts Point Fish Market and testified that there are "huge" signs in the building identifying the Joseph Monani Fish Company. R.306, 308. He testified that he has three bookkeepers and that Mr. Cardenas is his "head bookkeeper" and cashier but that Hector Garcia, not Mr. Cardenas, was authorized to accept service of process. R.307. Mr. Monani did not contest that the papers were delivered to the appropriate office and admitted that the papers were left for him on his desk and he saw them upon his return from a trip. R.313. The trial court's decision dated November 9, 2011, refusing to recognize and enforce the English Judgment on the ground that technical service was not properly made upon Monani, dismissed the action without prejudice "since jurisdiction was not obtained over the Defendant Joe Monani Fish Company, Inc." R.8. The trial court failed to address the applicability of CPLR Article 53 or the Galliano and Fashion Page decisions. 13 First Department Proceedings On August 3, 2012, Landauer timely appealed the trial court's decision to the First Department, and timely filed its opening brief, the agreed Record on Appeal and supporting documents. Thereafter, Defendant's counsel contacted Landauer's counsel by email dated August 15, 2012 with a request to supplement the Record with a November 23, 2010 letter, allegedly filed with the IAS Court and served upon counsel. R.334-336, 391-395. The November letter addressed to Judge Edgar Walker of Supreme Court, Bronx County - the IAS judge originally assigned to the action - specifically states that "Monani actually became aware of the English Court action before" default was entered against Monani and characterized Edward Monani's affidavit testimony denying prior knowledge of the English court proceedings as "inaccurate". Id. By email dated August 20, 2012, Landauer's counsel denied the request to supplement the Record by stipulation because Landauer's counsel had no record of ever having been served with a copy of the correspondence, and there was no record that the letter was ever delivered to Judge Walker. Id. Of course, Defendant-Appellee had the option of making a motion to supplement the Record to correct Mr. Monani's misrepresentation in the Record regarding lack of knowledge of the English action, but did not do so. Rather than moving to correct Defendant's misrepresentation, or at least refraining from perpetuating that misrepresentation in the appellate court, Defendant filed an 14 answering brief on September 5, 2012 containing several statements to the effect that it did not have notice of the English action prior to the Judgment being rendered by the English court, i.e., continuing to perpetuate the "inaccurate", i.e false, representation of lack of notice of the English action. Landauer sought leave to strike all representations of lack of notice from Monani's answering brief and to submit a reply brief that would reply to the answering brief as stricken. R.331. The First Department declined the relief and the appeal proceeded. R.482. By decision entered December 27, 2012, the First Department affirmed the trial court's decision on the ground that Landauer "failed to carry its burden of demonstrating, by a preponderance of the evidence, that service of papers in the English action was properly made upon defendant, a New York corporation, in accordance with CPLR 311(a)(1)." R.x-xii. On its face, the First Department decision ignored that Monani and his counsel had actual notice of the English action. The First Department conducted no analysis of CPLR Article 53, narrowly and technically read CPLR 311, and ignored the letter and spirit of Galliano and Fashion Page. The lower court's decision was clearly erroneous in light of the Record evidence that Monani was served and on notice of the English court proceedings prior to entry of the default Judgment. By order dated May 2, 2013, this Court granted Landauer's motion for leave to appeal. R.viii. 15 ARGUMENT I REVERSAL IS NECESSARY AND APPROPRIATE BECAUSE THE COURTS BELOW FAILED TO APPLY BINDING NEW YORK PRECEDENT AND NEW YORK'S PUBLIC POLICY OF ENFORCEMENT OF MONEY JUDGMENTS RENDERED BY FOREIGN COURTS A. Galliano Required the Lower Courts to Enforce the English Money Judgment Because Monani Had Notice of the Proceedings New York has traditionally been a generous forum in which to enforce judgments for money damages rendered by foreign courts. CIBC Mellon Trust Company v. Mora Hotel Corp., 100 N.Y.2d 215, 221, 762 N.Y.S.2d 5, 9 (2003) ("CIBC Mellon Trust"). The purpose of New York’s Enforcement of Foreign Judgments Act is to provide a mechanism by which New York courts recognize and enforce foreign court judgments without revisiting the merits. This Court has held that the inquiry for recognition of a foreign money judgment should be based on whether the foreign court's exercise of jurisdiction over the defendant was "fundamentally unfair." Galliano, 15 N.Y.3d at 81, 904 N.Y.S.2d at 686. Even the court’s consideration of the propriety of service of process is limited because it is for the foreign court to satisfy itself that service of process was validly made. See id. Courts should enforce foreign money judgments where, as here, the procedure used was not "fundamentally unfair" and the defendant received notice of the foreign court proceedings. Id. 16 Rejecting a New York defendant’s challenge to service of process and adequacy of notice of French court proceedings in which the defendant defaulted, this Court held in Galliano that the French court judgment was properly recognized and enforced in New York because “as long as we do not find the procedure used to be fundamentally unfair, the propriety of the service under the Hague Convention was an issue for the court in France,” and further stated that "the foreign judgment should be enforced in New York under well-settled comity principles without microscopic analysis of the underlying proceeding." Id. In Galliano, this Court explained that CPLR § 5304 (grounds for non- recognition of a foreign judgment) and § 5305 (negating lack of jurisdiction as a ground for non-recognition where defendant had agreed to submit to the foreign court's jurisdiction) "must be read together". 15 N.Y.3d at 80, 904 N.Y.S.2d at 685. In that case, "the Appellate Division rightly concluded, Stallion … [agreed to submit to the jurisdiction of the foreign court] when it entered into the licensing agreement given that agreement's forum selection clause…", and thus, could not contest enforcement of the foreign judgment against it in New York. Id. Galliano further held: Notice of a proceeding is, of course, a fundamental component of a court's proper exercise of personal jurisdiction over a party, and CPLR 5304 itself expressly recognizes a lack of notice as a ground for not recognizing a foreign money judgment in New York…We first note that, in seeking enforcement of a foreign money judgment in New York, the judgment creditor does not seek any new relief…but 17 instead merely asks the court to perform its ministerial function of recognizing the foreign country money judgment and converting it into a New York judgment. The inquiry turns on whether the exercise of jurisdiction by the foreign court comports with New York's concept of personal jurisdiction, and if so, whether the foreign jurisdiction shares our notions of procedure and due process of law…if the above criteria are met, and enforcement of the foreign judgment is not otherwise repugnant to our notion of fairness, the foreign judgment should be enforced in New York under well-settled comity principles without microscopic analysis of the underlying proceeding. 15 N.Y.3d at 80-81, 904 N.Y.S.2d at 685-686. (citations omitted). Just as the criteria for enforcement of the foreign judgment were met in the Galliano case, the criteria were met in this case.  In Galliano, enforcement of a French judgment was not repugnant to New York's notion of fairness; neither is enforcement of an English Judgment.  In Galliano, the defendant was aware of its ongoing disputes with Galliano; similarly, Monani was aware of its ongoing disputes with Landauer.  In Galliano, the contracts provided for French law and jurisdiction; Monani agreed to English law and jurisdiction in the Contracts with Landauer.  In Galliano, the defendant was held on notice of the French action although the court papers were written in French without English translations, contrary to the Hague Convention; Monani was delivered court papers through its head bookkeeper and Monani and its lawyer had notice of the English proceedings, despite the erroneous finding that technical service of process under the CPLR had not been made. 18  In Galliano, the defendant disputed that service was proper because the papers were in the French language; Monani disputed that service was proper because it was made on its head bookkeeper.  As in Galliano, Monani intentionally allowed entry of default judgment against it. In Galliano, the Appellate Division properly upheld enforcement; however, this time the Appellate Division in error denied enforcement. The court below ignored the English jurisdiction clause in the Contracts and ignored the evidence that Monani and his representative, counsel of record, were on notice of the English proceedings. Contrary to Monani’s arguments to the courts below that it did not receive notice of the English lawsuit in sufficient time to defend the English action, and that Monani would have defended the action had it had notice, the Record of unrefuted emails exchanged between Monani's counsel of record and Landauer's counsel reflect that Monani's counsel repeatedly acknowledged the existence of the English proceedings. R.221-245. In fact, Monani's counsel challenged Landauer to bring and proceed with the English court action and stated that Monani would not appear. R.185, 207, 224, 239, 241. Monani deliberately forfeited its opportunity to present any defenses to Landauer's right to payment, which only could have been presented in the English High Court. 19 B. The Lower Courts Erred in Failing to Consider the Uncontroverted Admissions of Monani's Counsel Establishing Notice of the English Proceedings In response to Monani's challenge to service of process and in support of its motion for summary judgment in the IAS court, Landauer submitted a sworn affidavit of its London counsel, Andrew Preston, attesting to the authenticity of email communications with Monani's counsel of record, which directly refuted Monani's assertions in its opposition papers. R.221-245. Monani argued in the court below that the emails were not properly part of the trial court's record because (1) they were submitted in reply and therefore Monani had no opportunity to respond; (2) they were not admitted into evidence at the traverse hearing; and (3) they were unauthenticated and inadmissible hearsay. The trial court did not address the emails and the First Department held that this was not error "as the exhibits were submitted for the first time in plaintiff's reply." R.xi-xii. The First Department also held that the exhibits "did not establish proper service under New York law." R.xii. As to Monani's first argument, the emails became relevant only after Monani served its opposition - Landauer had no reason to anticipate that Monani would deny that service was made in light of the personal service on Monani through Cesar Cardenas, or that Monani would assert that it did not have notice of the English action. Landauer's motion for summary judgment in lieu of complaint set 20 forth Landauer's prima facie case for recognition and enforcement of the English money Judgment, including the affidavit of service by the process server. Landauer submitted the emails between counsel evidencing receipt of the English court papers and Defendant's notice of the English action as a direct, appropriate and necessary response to Monani's opposition papers contesting service and notice. At no time did Monani make an effort to submit a sur-reply to the motion papers, refute the authenticity of the emails at the traverse hearing or otherwise object in Monani's multiple post-hearing submissions to the trial court, or to move to strike the reply affidavit. See Horton v. Smith, 51 N.Y.2d 798, 799, 433 N.Y.S.2d 92, 93 (1980) ("When a timely objection is not made, the testimony offered is presumed to have been unobjectionable and any alleged error considered waived"); Isaacson v. Karpe, 84 A.D.2d 868, 869, 445 N.Y.S.2d 37, 38 (3d Dep't 1981) ("Failure to timely object, or move to strike otherwise inadmissible evidence is fatal"). Tellingly, during the seven (7) months that followed the traverse hearing, both parties submitted letters to the IAS court, and Monani chose not to attempt to refute or explain away Landauer's evidence of notice. R.320-22, 326- 28. Monani chose to wait until the case was on appeal to argue below and without legal support, that Landauer had the obligation to introduce the emails into evidence at the traverse hearing. However, there is no case law support for this 21 assertion and even the trial judge observed at the hearing that the previously submitted affidavits already were part of the Record. R.275. Landauer properly introduced the emails by way of written sworn testimony in further support of its motion for summary judgment in lieu of complaint in response to Monani's unexpected claim that it was never served with the English court papers and had no notice of the proceedings. The emails constitute non- hearsay admissions in the Record binding on Defendant. See Bergstein v. Board of Education, 34 N.Y.2d 318, 357 N.Y.S.2d 465 (1974); Barone v. Guthy, 295 A.D.2d 460, 744 N.Y.S.2d 673 (2d Dep't 2002) (admissibility); Arch-Bilt Container Corp. v. Interboro Mut. Indem. Ins. Co., 119 A.D.2d 713, 714, 501 N.Y.S.2d 127, 128 (2d Dep't 1986) (admissibility); Salahuddin v. Coughlin, 781 F.2d 24, 27 (2d Cir. 1986) ("[l]itigants are normally "considered to have notice of all facts, notice of which can be charged upon the[ir] attorney"), quoting Link v. Wabash Railroad Co., 370 U.S. 626 (1962). As uncontroverted admissions by Defendant's counsel, the emails should have been dispositive of the question whether Defendant had notice of the English action. The courts further could have taken judicial notice of this unrefuted evidence in the Record of notice of the English action. See Assured Guaranty (UK) Ltd. v. JP Morgan Investment Mgmt., 80 A.D.3d 293, 303, 915 N.Y.S.2d 7, 15 (1st Dep't 2010) (court took judicial notice of memoranda of law); Yuppie Puppy Pet Prods., 22 Inc. v. Street Smart Realty, LLC, 77 A.D.3d 197, 202, 906 N.Y.S.2d 231, 236 (1st Dep't 2010) (court took judicial notice of opposition brief); Property Clerk, NYC Police Dep't v. Seroda, 131 A.D.2d 289, 294, 521 N.Y.S.2d 233, 237 (1st Dep't 1987)(court took judicial notice of letter filed in a related proceeding). The First Department's statement that the emails did not establish proper service plainly misapplied Galliano. The correct question was whether it was fundamentally unfair to enforce the Judgment under this Record. Because the Record plainly established that Defendant was on notice of the English proceedings through its head bookkeeper and its counsel, the court below improperly relied upon the trial court's conclusion that technical service of the English action had not been made to deny enforcement of the English Judgment.1 Further, as discussed infra at pages 29-32, CPLR service on Defendant in any event was made, entitling Landauer to enforcement of the Judgment. 1 The emails sent by Monani's counsel unequivocally establish that Monani's representative was on notice of the English action, and even Monani admitted that the papers were left on his desk for him when he returned from a trip, and he called his attorney. R.313. This incidentally matches the timeline of the emails which reflect that Monani's counsel initiated contact with Landauer's English counsel by telephone on Monday, May 25, 2009, which triggered a series of emails and telephone calls between the two attorneys to discuss the English court proceedings, potential settlement of the claim, and Landauer's intent to move for a default judgment in the English court. See Timeline, supra, at pages 8-9. Thus, irrespective of whether the November 23, 2010 letter (R.394-395) was transmitted to the IAS court (but not to Plaintiff's counsel), it is plain that Edward Monani was "inaccurate" when he stated in his affidavit that Defendant did not have notice of the English action before the default judgment was entered. R.213. 23 Comparing the facts in this case to Galliano, the courts below should have followed this Court's mandate in Galliano: …as long as we do not find the procedure fundamentally unfair, the propriety of service under the Hague Convention was an issue for the court in France. Our inquiry now under CPLR article 53 is more circumscribed; we need only determine at this stage whether the recognition requirements of article 53 have been met. 15 N.Y.2d at 81, 904 N.Y.S.2d at 686. The courts below did not consider the criteria of Galliano or circumscribe their inquiry to whether the recognition requirements of CPLR Article 53 were met. The trial court erroneously held that service on Monani's admitted head bookkeeper was improper, notwithstanding the evidence that Defendant was on notice and had received the papers, yet allowed the default Judgment to be entered. The courts below erroneously chose to disregard all evidence that Monani intentionally defaulted in the English proceedings. The courts below failed to properly circumscribe their CPLR Article 53 inquiry. C. The English High Court Judgment Is Enforceable Against Monani in Accordance with CPLR Article 53 1. The English High Court Judgment Meets the Requirements of CPLR §§ 5302 and 5303 CPLR § 5303, Recognition and Enforcement, provides: Except as provided in section 5304, a foreign country judgment meeting the requirements of section 5302 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. Such a foreign judgment is enforceable by an action on the 24 judgment, a motion for summary judgment in lieu of complaint, or in a pending action by counterclaim, cross-claim or affirmative defense. CPLR § 5302, Applicability, provides: This article applies to any foreign country judgment which is final, conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal. The Judgment is a final, conclusive and enforceable judgment in which the English High Court granted Landauer the recovery of a sum of money, and CPLR § 5303 explicitly provides for the enforcement of a foreign money judgment on a motion for summary judgment in lieu of complaint. Landauer is entitled to enforcement of the English High Court Judgment against Monani because none of the grounds for non-recognition of a foreign judgment applies to Landauer's judgment against Monani. 2. Monani Has No Basis to Invoke a Ground for Non-Recognition under CPLR § 5304(a) CPLR § 5304(a) provides that a foreign judgment will not be recognized if: (1) the judgment was rendered under a system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law; or (2) the foreign court did not have personal jurisdiction over the defendant. New York courts have held repeatedly that the English courts are recognized as impartial tribunals that provide procedures comparable with the requirements of due process of law. See CIBC Mellon Trust, 100 N.Y.2d at 222, 762 N.Y.S.2d at 25 9; Society of Lloyd's v. Grace, 278 A.D.2d 169, 718 N.Y.S.2d 327 (1st Dep't 2000); see also Society of Lloyd's v. Ashenden, 233 F.3d 473, 476 (7th Cir. 2000) (any "suggestion that [England's] system of courts does not provide impartial tribunals or procedures compatible with the requirements of due process of law borders on the risible") (quotations omitted). Thus, Monani cannot credibly argue that the Judgment rendered by the English High Court is not enforceable on this ground. 3. Jurisdiction in the English courts Was Agreed in Accordance with CPLR § 5305(a)(3) Notwithstanding any argument to the contrary, the Record shows that the English High Court had jurisdiction to enter judgment against Monani because Monani agreed - in successive contracts of sale - to English law and jurisdiction. CPLR § 5305(a)(3) provides: (a) Bases of jurisdiction. The foreign country judgment shall not be refused recognition for lack of personal jurisdiction if: 3. The defendant prior to the commencement of the proceedings had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved. Simply stated, CPLR § 5305(a)(3) specifically provides for enforcement of a foreign judgment where, as here, Defendant had agreed to the jurisdiction of the foreign court with respect to the subject matter of the dispute. 26 Here, the Contracts contained the following choice of law and forum clause whereby the parties consented to the application of English law and the jurisdiction of the English High Court: Clause 17: This contract shall be construed according to the laws of England, whatever the residence or nationality of the parties and its performance in every part and incident shall be considered due in England for the purposes of jurisdiction and the Courts of England or Arbitrators in England as the case may be, shall have exclusive jurisdiction over all disputes which may arise out of this contract. See R.185 (Brown Affidavit, ¶ 21). These parties had agreed that their disputes would be governed exclusively by English law and would be litigated in the English courts. Under CPLR § 5305(a)(3) and the Galliano case, this fact trumps any defense raised by Monani in New York that the English High Court did not have jurisdiction to render the Judgment. Monani clearly was afforded the opportunity to respond to Landauer's claim but failed to answer or otherwise appear in the English action. R.224-6; 230- 245. A New York defendant, under these circumstances, forfeits its opportunity to present any defenses to a plaintiff judgment creditor's claims. See Society of Lloyd's v. Grace, 278 A.D.2d at 169, 718 N.Y.S.2d at 327-328 (defendants were not deprived of due process because "the record indicate[d] that [the defendants] were afforded notice and an opportunity to be heard in the underlying English action and, accordingly, that the basic requisites of due process were met."). Here, Monani knowingly failed to present any defenses in the English action, including 27 any purported jurisdictional defense, and thus Landauer is entitled to enforcement of the Judgment as a matter of New York law. 4. Monani Has No Basis to Invoke a Ground for Non-Recognition under CPLR § 5304(b) None of the eight enumerated circumstances in CPLR § 5304(b) applies here because:  The foreign court had jurisdiction over the subject matter by agreement.  Defendant received notice of the proceedings but chose not to defend.  The judgment was not obtained by fraud.  A money judgment based on a breach of contract action for nonpayment of multiple invoices for goods delivered is not repugnant to New York public policy.  The judgment does not conflict with another final and conclusive judgment.  The agreements pursuant to which the proceeding in the foreign court was brought were the only agreements between the parties.  Alleged inconvenience of forum for trial was not an argument available to Defendant because jurisdiction was based upon the Contracts in which the forum was specified.  This was a money, not defamation, judgment. The Record shows that the English High Court had jurisdiction over the dispute involving unpaid invoices because the Contracts specifically contain an exclusive English law and English forum provision. R.113 (Preston Affidavit ¶¶ 28 15-16); R.153-154; R.182-186 (Brown Affidavit ¶¶ 7, 8, 21); R.221, (Preston Reply Affidavit ¶¶ 13-14). The English High Court relied upon the exclusive forum and law provision in the Contracts to enter the Judgment against Monani, and Landauer reasonably expected that New York courts would apply Article 53 of the CPLR such that the Judgment would be recognized and enforced. While the Contracts also contain an arbitration provision (Clause 13), this Clause was addressed in the English proceedings - Clause 13 related to resolution of disputes with respect to quality or quantity of goods (Clause 5), to be resolved by experts in the trade,2 and did not divest the English High Court of jurisdiction over disputes relating to the non- payment of invoices. R.115-119 (Preston Affidavit, ¶ 15-19). Any argument by Monani that the dispute should have been arbitrated was waived by Monani's failure to appear in the English court. See Massaro Elec. Co. v. CMG-Constr. Mgmt, 180 Misc. 2d 352, 354, 689 N.Y.S.2d 361, 363 (N.Y. Dist. Ct. Nassau Co. 1999) ("once a judgment has been entered there can be no other alternative but to consider the right to arbitration waived"); see also Charming Shoppes, Inc. v. Overland Constr., Inc., 186 Misc. 2d 293, 297, 717 N.Y.S.2d 860, 863 (N.Y. Sup. 2 In fact, the time for Monani to assert a claim in arbitration relating to quality or quantity of goods had expired. R.185 (Brown Affidavit, ¶¶ 18-19). 29 Ct. Monroe Co. 2000) (defendant "effectively waived its right to enforce the arbitration clause when it failed to answer or appear in response to the summons and complaint … where there was no reasonable excuse for default"). The English High Court awarded a money Judgment for Monani's failure to pay on invoices for goods delivered. R.113-116. Clearly, the English Judgment was not obtained by fraud and was not related to defamation; nor is it repugnant to New York public policy to require a purchaser to pay for goods that it ordered and received, particularly numerous consecutive orders for goods purchased and delivered. There exists no other judgment with which the English High Court Judgment conflicts. Accordingly, under Article 53, there exists only a right to enforcement. II THE COURTS BELOW IMPROPERLY APPLIED CPLR § 311 IN LIGHT OF THIS COURT'S MANDATE IN FASHION PAGE In Fashion Page, rendered more than 30 years ago, the Court of Appeals stated that CPLR § 311 “should not be read in such a narrow and technical manner” so as to require service on a person with a particular title. 50 N.Y.2d at 272, 428 N.Y.S.2d at 894. “If service is made in a manner which, objectively viewed, is calculated to give the corporation fair notice, the service should be sustained.” Id. As this Court has stated, the statute should be "liberally 30 construed". Id. at 271, 428 N.Y.S.2d at 893; Dunn v. Pallett, 66 A.D.3d 1179, 1180-81, 889 N.Y.S.2d 682, 684 (3d Dep't 2009) (court found that process server had reasonable basis to believe that employee who accepted papers and said she was "the manager" was authorized to accept service notwithstanding that she merely performed clerical duties and, according to defendant, was not authorized to accept service). The testimony at the hearing established that service was made on Monani at its place of business through delivery to Cesar Cardenas, the person described by Edward Monani (the 100% shareholder of Monani), as his "head bookkeeper". R.307. The testimony of process server James Cagney, corroborated by Stanton Cagney, confirmed that Mr. Cardenas freely accepted the legal papers served on May 13, 2009 and did not object to service or at any time state that he was not authorized to accept service of legal documents on Defendant. See R.276-278, 296-297. Mr. Monani confirmed at the traverse hearing that he received the papers. R.313. Although Edward Monani testified that allegedly only one person, identified as Hector Garcia, was authorized to accept service on behalf of Monani, New York case law clearly does not permit a defendant to shield itself from service of process by such a declaration. "[R]egardless of the defendant's usual and intended procedure [for acceptance of service of process] it is the process server's 31 reasonable belief that is the crucial factor." Arvanitis v. Bankers Trust Co., 286 A.D.2d 273, 274, 729 N.Y.S.2d 706, 707 (1st Dep't 2001) (acceptance of legal papers by a person behind a window in the basement receiving area was valid service because of process server's reasonable belief that the woman was authorized to accept process, and process server's failure to ask the person's name did not invalidate service - here, the process server did ask and receive the person's name who indisputably accepted the papers); Freud v. St. Agnes Cathedral School, 64 A.D.3d 678, 679, 881 N.Y.S.2d 908 (2d Dep't 2009) (service on a secretary was valid notwithstanding secretary's after-the-fact denial that she was authorized to accept service of process-here, service was on the head bookkeeper who after- the-fact denied authority to accept service); Collini v. Turner Const. Co., 129 N.Y.S.2d 485-486 (Kings Co. 1954) (service on head bookkeeper was equivalent to managing agent authorized to accept service). Mr. Cardenas was employed as Monani's head bookkeeper at Monani's place of business and was served with the English court proceedings. The court below should have reversed the trial court's finding of improper service of process as contrary to Fashion Page, and enforced the English Judgment because it was not fundamentally unfair to require Monani to bear the consequence of its knowing default. The First Department erroneously ignored the testimony that the process server went to Monani's place of business at Hunts Point Market - where there 32 were "huge signs" identifying Joe Monani Fish Company - located Monani's office and served the papers on Monani's head bookkeeper, Cesar Cardenas. R.276-278, 306, 308. The fact that the process server may have asked an "individual who was mopping the floor" (R.x-xi) for directions to the exact doorway does not render unreasonable the process server's belief that he served the appropriate person, particularly in light of the location of Monani's business (in Hunts Point Market rather than a traditional office building), and the fact that Mr. Cardenas accepted the papers without hesitation or objection after the process server identified them as legal documents for Joe Monani Fish Company. R.276-278. In order to deprive Landauer of its right to enforcement, the decisions below erroneously relied on a finding of technical failure of service of process under CPLR 311 - a strict compliance analysis long rejected by this Court. In any event, as discussed, supra, under Galliano, whether to order enforcement of the Judgment was supposed to turn on whether it would be fundamentally unfair to Defendant. The Record of unrefuted emails exchanged between Monani's counsel of record and Landauer's English counsel establish that Monani's representative repeatedly acknowledged the existence of the English proceedings and that Landauer would seek a default for Monani's non-appearance. R.185, 207, 224, 239, 241. Here, there is no doubt - based on the evidence that was in the IAS court's Record - that there was service on Monani and notice to Monani and its counsel. 33 III LANDAUER IS ENTITLED TO SUMMARY JUDGMENT ENFORCING THE ENGLISH JUDGMENT AS A MATTER OF NEW YORK LAW AND PUBLIC POLICY Under New York law, a moving party is entitled to summary judgment upon a prima facie showing of entitlement to judgment as a matter of law by advancing sufficient evidence to demonstrate the absence of any issues of material fact. See Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986), see also Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 133 (1974) ("when there is no genuine issue to be resolved at trial, the case should be summarily decided.”) Landauer clearly has made the showing and Monani cannot properly defeat summary judgment as there is no evidentiary proof in admissible form sufficient to warrant a trial of material questions of fact. See Forray v. New York Hosp., 101 A.D.2d 740, 741, 475 N.Y.S.2d 57, 59 (1st Dep't 1984) (granting summary judgment for moving party where non-moving party failed to demonstrate the existence of genuine triable issue of fact), see also Strasburger v. Rosenheim, 234 A.D. 544, 547, 255 N.Y.S. 316, 320 (1st Dep't 1932) ("A [non- moving party] must show real and substantial facts sufficient to entitle him to defend" if he is to avoid summary judgment) (quotations omitted). Landauer asserted in the English High Court its right to seek outstanding payment for goods delivered to Monani in accordance with the terms of the parties' 34 Contracts. It is not fundamentally unfair to enforce the money Judgment rendered in the action that Monani chose to ignore. The English High Court had personal jurisdiction over Monani, and subject matter jurisdiction over the dispute between the parties. English Courts are impartial tribunals and provide procedures comparable with New York requirements of due process of law. See CIBC Mellon Trust, 100 N.Y.2d at 222, 762 N.Y.S.2d at 10. There are no grounds upon which to deny recognition under CPLR § 5304. Instead, New York law and public policy compel enforcement of the English Judgment. Accordingly, Landauer respectfully submits that the Decision below must be reversed and that its motion for summary judgment in lieu of complaint to enforce the judgment of the English High Court must be granted as a matter of law. 35 CONCLUSION Plaintiff-Appellant Landauer respectfully requests that the Court reverse the decision of the lower court, enforce the English High Court judgment in favor of Landauer in accordance with CPLR § 5303 and New York State's strong policy in favor of recognition and enforcement of foreign judgments, and enter Judgment in favor of Landauer in the amount of $368,755.49 plus statutory prejudgment and postjudgment interest and costs, and such and further relief as the Court deems proper. Dated: July 1, 2013 New York, New York Respectfully submitted, CLYDE & CO US LLP By /s/Diane Westwood Wilson Diane Westwood Wilson Deborah A. Elsasser The Chrysler Building 405 Lexington Avenue New York, New York 10174 (212) 710-3900 Attorneys for Plaintiff Landauer Limited