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. REPLY 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) 710-3950 Attorneys for Plaintiff-Appellant Landauer Limited September 3, 2013 i TABLE OF CONTENTS PRELIMINARY STATEMENT…………………………………….……..……....1 SUMMARY OF ARGUMENT………………………………………………...…..1 ARGUMENT……………………………………………………….………..……..2 I. ALL OF LANDAUER'S ARGUMENTS WERE RAISED BELOW AND ARE SUPPORTED BY THE RECORD ON APPEAL…….…......2 II. THE COURT SHOULD REJECT MONANI'S ATTEMPT TO REFUTE EVIDENCE AND RAISE NEW ARGUMENTS FOR THE FIRST TIME ON APPEAL…........................................................................….10 III. THE COURT SHOULD REVERSE TO ENSURE THAT THE LOWER COURTS APPLY THE LETTER AND SPIRIT OF GALLIANO AND FASHION PAGE AND ENTER JUDGMENT FOR LANDAUER AS A MATTER OF NEW YORK LAW AND PUBLIC POLICY..…………14 CONCLUSION……………..……………………………….…………..…….….18 ii TABLE OF AUTHORITIES Cases: Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265, 428 N.Y.S.2d 890 (1980)…………………………………………………..………………….....passim Galliano v. Stallion, Inc., 15 N.Y.3d 75, 904 N.Y.S.2d 683, cert denied, 131 S. Ct. 288 (2010)………………………………………………………...passim Salahuddin v. Coughlin, 781 F.2d 24 (2d Cir. 1986)………………………...…...12 Select Portfolio Servicing, Inc. v. Lillian Krupin, 2009 N.Y Misc. LEXIS 6553, 2009 N.Y. Slip. Op. 33063 (U) (N.Y. Co., Dec. 30, 2009)...................................13n Society of Lloyd's v. Grace, 278 A.D.2d 169, 718 N.Y.S.2d 327 (1st Dep't 2000)……………………………………................................................13 Other Authorities: New York Civil Practice Law & Rules § 311………………………..………passim New York Civil Practice Law & Rules § 3213…………………………...………..1 New York Civil Practice Law & Rules § 5303……………..............….............1, 18 New York Civil Practice Law & Rules § 5602…………………………...………..1 1 PRELIMINARY STATEMENT Plaintiff-Appellant Landauer Limited [Landauer] respectfully submits this reply brief in further support of its appeal from the denial of 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 Defendant- Respondent Joe Monani Fish Co. [Monani] in the amount of $368,755.49. SUMMARY OF ARGUMENT The Court should reject Monani's argument that New York courts may ignore the binding precedent of Galliano and Fashion Page when presented with a motion for summary judgment to enforce a foreign money judgment. The decisions below and Monani's defense rest on the erroneous premise that compliance with technical service of process rules is necessary to grant enforcement of a foreign money judgment. Monani and the lower courts are wrong because Galliano and Fashion Page clearly have held to the contrary. Monani’s attempt in this Court to deny receipt of the terms and conditions of the Landauer invoices, i.e., the English law and venue clause, and inject ambiguity into the pre-default emails exchanged between Monani’s counsel and Landauer’s counsel must be rejected because these arguments are unsupported by the Record and were not raised properly below. 2 The evidence establishes that (1) Monani’s bookkeeper, Cesar Cardenas, was served with the English court papers, (2) Monani's counsel engaged in an ongoing dialogue about the dispute for several months prior to defaulting in the English court, and (3) Monani had notice of the English court proceedings but chose to allow the default to be entered by the English court. Under these established facts, Galliano and Fashion Page require the lower courts only to answer the question whether enforcement would be fundamentally unfair. On the irrefutable evidence, the answer is "no" and, thus, the Court should reverse the Decision of the lower court and enforce the English Judgment against Monani. ARGUMENT I ALL OF LANDAUER'S ARGUMENTS WERE RAISED BELOW AND ARE SUPPORTED BY THE RECORD ON APPEAL Monani wrongly accuses Landauer of distorting the Record and raising facts and arguments for the first time in this Court. This attack is unjustified as all of Landauer's arguments were raised below and are supported by the Record. The evidence that Monani argues as being improperly introduced on appeal is evidence that Landauer filed with the IAS Court in support of its motion for summary judgment in lieu of complaint but did not re-submit to the court at the traverse hearing. That evidence, i.e. the pre-default emails between Monani's counsel and Landauer's counsel, the invoices containing the English law and forum clause, and 3 the sworn statements of Andrew Preston and Stephen Brown which were filed in the IAS court and which authenticate this evidence, were never refuted by Monani. There was no need for Landauer to call any witnesses to testify as to facts that were already submitted to the IAS Court in the form of sworn written testimony, and were not contested. The IAS judge confirmed this by stating that all previously filed written submissions were part of the Record, and Monani's counsel raised no objection.1 R. 275. At no time during the proceedings in the IAS Court did Mr. Weisbrot ever refute the authenticity of the emails attached to Mr. Preston's reply affidavit or the representations by Mr. Preston regarding the extensive course of telephonic and email communications with Mr. Weisbrot. R. 221-27. Likewise, Monani never refuted Mr. Brown’s sworn statement that Monani received a Landauer invoice with each of Monani's six (6) consecutive orders of seafood and each invoice had 1 Landauer’s main brief addresses Monani’s fallacious argument (adopted by the First Department) that the court did not have to consider the emails because they were submitted for the first time on reply. As explained there, because Landauer believed personal service of the English proceedings was made on Monani and knew that Monani's counsel had communicated with Landauer's English counsel regarding the English court proceedings, Landauer had no reason to anticipate that Monani would misrepresent to the court that it was unaware of the English action prior to default and thus force Landauer to submit the emails on reply. See Landauer Brief at 19-21. The Court should reject Monani's attempt to mischaracterize the course of proceedings in the IAS Court. See Monani Brief at 29-31. 4 the terms and conditions (including the English law and forum provisions) printed on the back. R. 182-85. If Monani and/or its counsel wished to deny that Mr. Weisbrot was acting as its attorney when he communicated with Landauer's counsel, or that Mr. Weisbrot intended to convey something other than what the emails plainly state on their face, the time to do that was in the IAS Court. Both Monani and his counsel were at the traverse hearing and Monani's principal, Mr. Edward Monani, even testified at the hearing. R. 306-15. Mr. Monani neither denied that Mr. Weisbrot was acting as counsel for the company, nor that he (or the company) received the backs of the Landauer invoices with the terms and conditions printed thereon. The cases cited by Monani (see Monani Brief at 18-19) regarding the burden of proof at traverse hearings do not support its argument that Landauer was required to re-submit evidence that was unrefuted by Monani prior to or at the hearing. Those cases hold that where a process server’s affidavit of service is challenged, the plaintiff must prove by admissible evidence at the traverse hearing the fact and manner of service of process on the defendant. Landauer did just that by calling its process server to testify as to the service that he made on Cesar Cardenas. R. 271-80. Landauer stands by its position that the Record establishes Landauer's entitlement to enforcement of this foreign money judgment. Monani's assertion 5 that "the only evidence adduced at the Traverse hearing was that Monani did not agree to litigate in England" (see Monani Brief at 5) is blatantly untrue as the reference to the Record (R. 312) reveals. Monani was on notice of the action - through its counsel and by virtue of personal service upon Monani's "head bookkeeper," and yet Monani chose to default, apparently based upon a mistaken belief that the default judgment would not be enforceable in the United States. R. 231, 239, 241. Landauer argued repeatedly and correctly in both the IAS Court and the First Department that Mr. Weisbrot's emails show notice on the part of Monani’s counsel of the English court proceedings and are admissible as admissions against his client’s interests. 2 R. 432-36, 452, 455-56; See Landauer Brief at 21-22. The Record makes clear that enforcement of this default judgment is not "repugnant to New York's notion of fairness" under the binding precedent of Galliano or Fashion Page, which the lower courts are not at liberty to ignore. Landauer has not misquoted Edward Monani's testimony at the traverse hearing that he received the English court papers when he returned to his office after a trip. See Landauer Brief at 12, R. 313. During his testimony, Mr. Monani stated that "he" was not served with the lawsuit - which we know to be true 2 To the extent Monani is arguing that Landauer did not address in the IAS Court the issue of the English court’s jurisdiction, see the uncontroverted Affidavits of Andrew Preston and Stephen Brown submitted in support of the Motion for Summary Judgment both of which addressed the issue. R. 113-17 (¶¶ 15-19), R. 182-87 (¶¶ 7-9, 21-22), R. 422, 427-30, 473-74. 6 because his bookkeeper, Cesar Cardenas, was served with the papers. R. 276-77; 313. Mr. Monani's counsel asked him, "how did you find out about [the English lawsuit]?" to which he responded that he "came back from vacation or some kind of business trip and I found some papers on my desk." R. 313. Mr. Monani was asked what he did, and he stated that he looked at the papers and called Mr. Weisbrot. Id. This excerpt was referenced by Landauer, correctly. See Landauer Brief at 12. Mr. Monani then was asked by his counsel: "And what was the next thing you found out?", to which he responded: "Well, now, you're talking about the judgment papers?" … "I told you, I was in shock. I didn't expect them." R. 313 (emphasis added). In its brief, Landauer quoted the testimony where Mr. Monani acknowledged that he found out about the lawsuit when he received the papers that were on his desk when he returned from his trip. There was no need for Landauer to quote the second part of the questioning regarding service of the judgment papers (i.e., "the next thing [Monani] found out,") because notice of entry of the default judgment is not relevant to the issues presented in this appeal. Nonetheless, in an ill-disguised attempt to muddy the Record, Monani has inserted the word "judgment" into the excerpt of Monani's testimony that was (correctly) 7 quoted by Landauer. Compare Monani Brief at 6 to R. 313. The Court should reject Monani's attempt to conflate these two lines of questioning. The Record shows that the timeline of events set forth in Landauer's Brief (at 8-9) is accurate and consistent with both Mr. Monani's testimony that he received the papers when he returned to the office from a trip, and Monani's concession in its Brief that Mr. Weisbrot advised Mr. Monani of the English lawsuit "in May or June 2009." Monani's Brief at 6. The Record establishes: 1. On September 5, 2008, "Monani's attorney, N. Ari Weisbrot" wrote to Landauer's then counsel, Richard A. Klass, "Please file and serve your lawsuit." (R. 214; 177); 2. On May 13, 2009, the process server hand delivered the English court proceeding papers to Monani's bookkeeper, Cesar Cardenas, at Monani's office in Hunts Point Market (R. 276-77); 3. On or about May 25, 2009, Mr. Weisbrot made his initial contact to Landauer's English counsel, Mr. Preston, to discuss the English court action (R. 237); 4. On June 24, 2009, the default judgment was entered (R. 115, 119); and 8 5. On September 4, 2009, the process server hand delivered the English default judgment to Arturo Aponte (R. 279).3 Mr. Monani's testimony plainly states that he received the English proceedings when he returned from a trip and, at a later date (not inquired of by Monani's counsel at the traverse hearing), he received the default judgment. R. 313. Moreover, since the first record of service of the default judgment was not until September 2009 (R. 279), and Mr. Weisbrot advised Mr. Monani of the existence of the English court proceedings in May or June 2009 (see Monani Brief at 6), Monani's argument that its first notice of the English action was when it received the judgment should be rejected as nonsensical. It also should be noted that Mr. Monani has given completely contradictory sworn testimony as to when he first knew about the English proceedings. In his affidavit opposing summary judgment he flatly denies any awareness of the English court proceedings until he was served with Landauer's motion for summary judgment to enforce the judgment in August 2010 (R. 211-216); but at the traverse hearing, Mr. Monani admitted that the papers were waiting on his desk when he returned from a trip and that he later received the judgment (R. 313). Now counsel for Monani admits that he advised his client of the English action "in 3 Monani argues that service of the judgment was never made because Arturo Aponte was not a Monani employee. See Monani Brief at 21. This issue is not relevant to Landauer's motion to enforce the judgment because the English court's jurisdiction is not based on the service of the default judgment. 9 May or June 2009", which brings us to Monani's argument that the Court should ignore this evidence-Mr. Weisbrot's purported November 23, 2010 letter to IAS Judge Walker [the "Weisbrot letter"]-as not being a part of the Record. See Monani Brief at 6, 35. Landauer acknowledges that the Weisbrot letter was not part of the Record on Appeal to the First Department, but the Weisbrot letter indisputably was the subject of motion practice in the First Department and, contrary to Monani's statement, this letter was not stricken from the Record by the Appellate Division. R. 482. The Weisbrot letter was submitted in conjunction with Landauer's motion to the First Department to strike those portions of Monani's brief that contradicted the admissions in Mr. Weisbrot's letter as to when Monani first learned of the English court proceedings. R. 331, 394-95. Landauer's inclusion of the letter is an accurate reflection of the First Department Proceedings and, significantly, although Landauer need not rely upon the Weisbrot letter as additional evidence of Monani's knowledge of the English court proceedings, it is Monani that affirmatively relies upon the Weisbrot letter to argue to this Court that the evidence does not conclusively establish that Monani was aware of the proceedings prior to default. See Monani Brief at 6-7. R. 394. Monani essentially now requests this Court to rule that since its counsel hedged in his letter as to when he informed his client, the Record is ambiguous as to when 10 Mr. Monani first learned about the English action.4 However, Monani's persistent refusal to come clean as to exactly when its counsel advised of the English court proceedings does not protect Monani from its decision to ignore the English action. This Court should not save Monani from its reckless decision to ignore the English action and New York precedent regarding enforcement of foreign money judgment. New York law and this Record are clear-under Galliano and Fashion Page - Landauer is entitled to judgment in its favor. II THE COURT SHOULD REJECT MONANI’S ATTEMPT TO REFUTE EVIDENCE AND RAISE NEW ARGUMENTS FOR THE FIRST TIME ON APPEAL Monani has improperly recast the evidence in an attempt to deflect attention from the undisputed emails establishing pre-default notice to Monani of the English court proceedings. It is improper for Monani to argue - for the first time 4 The history of Monani's arguments regarding the Weisbrot letter is curious. At first, Monani requested that the letter be added to the Record, notwithstanding that neither the IAS Court nor Landauer had a record of the letter. See R. 333-36. When Landauer refused, Monani chose not to move the First Department to supplement the Record with the allegedly filed letter. R. 391-95 Monani later opposed Landauer's motion in the First Department to strike references in Monani's brief denying knowledge of the English proceedings. R. 405. In this Court, Monani relies on the letter to create ambiguity as to when it actually received notice of the English proceeding. See Monani Brief at 6. 11 on appeal - that the emails sent by Monani's counsel5 to Landauer's counsel are ambiguous, or that Monani never received the backs of the invoices from Landauer. Contrary to Monani's argument (also raised for the first time on appeal), the invoices do not contain any statement "prohibit[ing] civil proceedings," and Monani makes no citation to the Record to support this point. See Monani Brief at 27. The facts relating to jurisdiction and notice were established by Landauer in the IAS Court and cannot properly be refuted by unsworn argument in an appellate brief. Simply put, Monani waived those arguments by not challenging the evidence in the trial court. Monani’s argument now that "the cited email never confirms that Monani was aware of the details of communications between counsel" (Monani Brief at 5), should be rejected as immaterial to the question of whether the courts below were compelled to enforce the money judgment. What is material is what Monani failed to address: 5 Monani takes issue with Landauer's characterization of Mr. Weisbrot as Monani's counsel of record. Landauer was merely stating the obvious, that Monani's counsel of record in the IAS Court, the First Department and this Court was communicating with Landauer's English counsel over the course of several weeks regarding Landauer's claim. The significant fact is that Mr. Weisbrot was acting in a representative capacity while communicating with Landauer's counsel, as evidenced by Mr. Weisbrot’s repeated references to Monani as "my client," and Edward Monani’s affidavit acknowledging Mr. Weisbrot as Monani’s counsel several months before the time of the emails. See R. 214, 231, 232, 239, 241. 12  Monani did not, and for obvious reasons could not, refute that Mr. Weisbrot was acting as counsel for Monani when he wrote the emails to Landauer's counsel;  Edward Monani’s affidavit in the IAS Court acknowledges that Mr. Weisbrot was counsel to Monani at the time he advised Landauer’s counsel to “Please file and serve your lawsuit”, eight (8) months prior to commencement of the English proceedings (R. 207, 214), and Edward Monani has never testified that Mr. Weisbrot was not acting as Monani's counsel at any time during the communications with Landauer's counsel, Mr. Preston; and  New York law imputes Mr. Wiesbrot’s statements and knowledge to his client (see Salahuddin v. Coughlin, 781 F.2d 24, 27 (2d Cir. 1986)), addressed in the courts below and to this Court. See Landauer Brief at 20-22; R. 324-25; 455-56. Monani's argument that "Monani never received the backs of those invoices" because "Landauer sent photocopies of the fronts of the invoices and never saw or agreed to the venue provisions" must be rejected for failure to submit such evidence or testimony in the IAS Court and as unsupported by Monani's putative 13 Record references. See Monani's Brief at 4-5 (R. 239, 312).6 Compare R. 183-85; R. 221-27, 239. Monani devotes a considerable number of pages to its argument that the default judgment is repugnant to New York’s notion of fairness because there was an arbitration provision in the invoices and because the proceeding purportedly was untimely; but, as Galliano instructs, Monani has waived these arguments by not presenting them in the English action. See Landauer Brief at 25-26. As Mr. Preston cautioned Mr. Weisbrot in his email dated May 29, 2009, Monani was free to argue application of the arbitration clause (and any other defenses) to the English court but failure to appear in the court would result in a default judgment. R. 241-42. The Record contains the documents presented to the English court by Landauer to obtain permission to serve papers on Monani, which includes a recitation of the particulars of Landauer’s claim against Monani, as well as the 6 Monani's first record reference is to one of Mr. Weisbrot's emails to Andrew Preston prior to default being entered. R. 239. While the email contains Mr. Weisbrot's self-serving statement that "my client never received those 'terms and conditions' which, seemingly were added to your London-filing after the fact," Monani never testified to that effect and thus, the email constitutes inadmissible hearsay that cannot properly refute the uncontroverted testimony of Mr. Brown. See Select Portfolio Servicing, Inc. v. Lillian Krupin, 2009 N.Y Misc. LEXIS 6553, 2009 N.Y. Slip. Op. 33063 (U) (N.Y. Co., Dec. 30, 2009). The second reference is to the transcript, but the testimony cited does not support Monani's assertion. R. 312. 14 terms and conditions of the Landauer invoices (including the English law and jurisdiction and arbitration provisions). R. 149-55. All of Monani’s arguments on the merits of the claim and its interpretation of the contracts (Monani Brief at 9-11, 37-40) were waived when it failed to appear in the English action. See Landauer Brief at 28; Galliano, 15 N.Y.2d at 80-81, 904 N.Y.S.2d at 685-686; Society of Lloyd’s v. Grace, 278 A.D.2d 169, 718 N.Y.S.2d 327, 328 (1st Dep’t 2000). III THE COURT SHOULD REVERSE TO ENSURE THAT THE LOWER COURTS APPLY THE LETTER AND SPIRIT OF GALLIANO AND FASHION PAGE AND ENTER JUDGMENT FOR LANDAUER AS A MATTER OF NEW YORK LAW AND PUBLIC POLICY Monani incorrectly argues that to reverse the judgment below, this Court would have to ignore the testimony of Edward Monani and second guess the findings of fact made by the IAS Court. The Court can and should reverse the decisions below based on the failure of those courts to answer the critical question set forth in Galliano for enforcement of a foreign judgment - whether the Record shows that Monani was on notice of the English proceedings. The unequivocal answer to that question is "yes". The courts below narrowly held that service was improper because it was not made on one of the enumerated individuals authorized to accept service of process under CPLR 311(a)(1). R. 8. The IAS Court did not make any finding that the process server, Mr. Cagney, did not hand deliver the papers to Monani's 15 bookkeeper; that Edward Monani did not receive the English court papers; or that Mr. Weisbrot was not acting as Monani's counsel when he permitted the English action to proceed to judgment without Monani's appearance. R. 6-8. The First Department simply endorsed the trial court's narrow holding (R. x-xii) and refused to acknowledge Fashion Page's admonition 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. This Court should not permit the courts below to blindly refuse to uphold Galliano and Fashion Page. Reversing the courts below based on their failure to use the proper criteria for enforcing a foreign money judgment would merely require this Court to apply the rule of Galliano to the unrefuted evidence submitted by Landauer in support of its motion for enforcement of the judgment.7 Monani makes much of the purportedly “false affidavit” of the process server but never denies that service was actually made on Cesar Cardenas, confirmed to be Monani’s bookkeeper (head bookkeeper as of the time of the 7 Monani’s statement at page 22 of its brief that the First Department held that the English Court did not have personal jurisdiction over Monani “[b]ecause Monani did not receive notice of the English lawsuit (or of the English default judgment) in sufficient time to enable it to defend it” is simply false. The First Department made no findings as to whether Monani received notice sufficiently in advance of the default judgment; nor did the First Department make any findings or ruling as to service of the default judgment itself. R x-xii. The First Department’s holding was limited to whether the individual served was authorized to accept service of process. Id. 16 traverse hearing). See Monani Brief at 12. Monani attempts to inflame the Court by characterizing the affidavit of service as being “replete with false statements,”8 but the critical point is that the IAS Court did not reject Landauer's position that Mr. Cardenas was served with the papers. The transcript of the traverse hearing belies Monani’s erroneous statements that Mr. Cagney simply dropped the papers on a desk with an unidentified individual. See Monani Brief at 2. Mr. Cardenas was not an unidentified individual. He was Monani's bookkeeper who accepted the "legal documents ... for Joe Monani Fish Company" without objection. R. 276-78. The facts set forth in Landauer’s Brief at 11-12 accurately describe the testimony at the traverse hearing as to how service was made on Monani's bookkeeper. Mr. Cagney testified that he believed that Mr. Cardenas was authorized because Mr. Cardenas readily accepted the legal papers that Mr. Cagney announced he was serving on Monani. R. 277. Additionally, the fact that a person mopping the floor directed Mr. Cagney to Monani’s office is not unusual considering Monani’s office location in the Hunts Point Market. See R. xi. This Court has never prescribed who a process server may consult to identify a place of 8 In an attempt to magnify the errors in the process server's affidavit of service, Monani repeatedly refers to the subsequent service of the default judgment on Arturo Aponte. As Monani is fully aware, service of the default judgment is not relevant to the issues presented here. The Record shows service of the English court papers that preceded the entry of default and that Monani was on notice. 17 business and the First Department erred in treating this fact as consequential in light of the fact that Monani's place of business is not in a traditional office building where a receptionist or the like handles such inquiries. Id. Monani attempts to distinguish this case from Galliano by inaccurately depicting service here as essentially non-existent. But, this case, just like Galliano, involves a knowing default and a subsequent attempt to challenge jurisdiction based on a failure to comply with technical service rules; here, under the CPLR. None of the cases relied upon by Monani to argue improper service of process involves enforcement of a foreign judgment. See Monani Brief at 19-20. The Court should reject Monani's attempt to ignore Fashion Page and to distinguish Galliano. The Record establishes that Mr. Cardenas, Monani's head bookkeeper, took delivery of the English papers from the process server (R. 277), and that the English law and forum clause was contained in each of the Landauer invoices sent to Monani (R. 182), that Edward Monani found the papers on his desk upon his return to the office from a trip (R. 313), that he called Mr. Weisbrot (Id.), and Mr. Weisbrot contacted Mr. Preston who held off on seeking a default for several weeks. R. 222-26, 237. An eleventh hour attempt to disavow - by unsworn argument in an appellate brief - the contract language and pre-default communications establishing notice, cannot trump Landauer's unrefuted record evidence. 18 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' Contracts. The world does business in reliance upon the principle that New York courts uphold New York law. It is not fundamentally unfair to enforce a money judgment rendered against a New York corporation in an action that the company chose to ignore. There are no genuine facts in dispute. The Record is clear - Monani was on notice of the English action through multiple and ongoing means of communication with its lawyer and service on its bookkeeper. New York law and public policy compel enforcement of the English Judgment against Monani. 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. 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 other and further relief as the Court deems proper. 19 Dated: September 3, 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