Domesticating a Foreign Country Judgment in New York

Globe of flags to represent domesticating a foreign country judgment Domesticating a foreign country judgment in New York is possible though the rules are different than domesticating a judgment entered in another U.S. state or territory. If you have a judgment entered in another U.S. state or territory, the methods for entering the judgment in New York are clear according to the civil rules. If the judgment was entered “on the merits” with an appearance by the defendant in the state or territory where the original case was brought, then the judgment can be docketed in New York with a notice to the judgment debtor that the judgment has been docketed in the state. This is in accordance with the U.S. Constitution that judgments from U.S. territories should be afforded full faith and credit in other U.S. territories.

If, however, the judgment was entered on default without an appearance from the defendant, in order to obtain a judgment in New York, the plaintiff must file a summons and complaint on the judgment and serve the defendant by the process server. New York courts want to ensure the defendant was both afforded due process in the original action and that the original court had jurisdiction over the defendant.

Now, what if you have a judgment from Canada and wish to domesticate the judgment in New York?

Assuming the defendant appeared in the original judgment, there is no mechanism to simply “docket” a foreign country judgment on the merits as a plaintiff could with a sister U.S. state or a U.S. territory judgment. The rules for domesticating are different and governed by Article 53 of the CPLR. First, in order to enter a foreign country judgment in New York, the original judgment must be considered final, conclusive, and enforceable when rendered, whether an appeal is pending or not.

While a judgment being “final, conclusive and enforceable” may be assumed as a given in any country where entered, this is not the case. The New York rules particularly state that a judgment is not to be considered conclusive if:

  1. It is rendered under a system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law
  2. The foreign court did not have personal jurisdiction over the defendant.

Types of Foreign Judgments Not Recognized

Examples of judgments not being recognized in New York include the court finding that the judicial system of post-1979 Iran lacked procedural due process and most recently, where one of the reasons for the court’s denial of recognition of an Ecuadorian judgment was that the Ecuadorian legal system was in a state of a constitutional crisis and did not provide impartial tribunals. Another example is where a company attempted to domesticate a judgment from Liberia. The New York court found that Liberian courts, despite having constitutional protections, were in a state of civil disarray due to the civil war and unlikely to dispense impartial justice. Thus summary judgment was granted in the defendant’s favor.

Whether the foreign court had personal jurisdiction over the defendant is a case-specific question, such as whether the defendant was properly served in accordance with the rules of the original court.

Assuming the foreign country judgment is deemed to be conclusive in accordance with the New York rules, there are other grounds for possible non-recognition by the New York courts, which include whether:

  • The foreign court had jurisdiction over the subject matter
  • The defendant in the foreign proceeding was given notice in time to enable her/him to defend the action
  • The judgment was obtained by fraud
  • The action on which the judgment is based is repugnant to the public policy of New York
  • It conflicts with another final and conclusive judgment
  • The foreign proceeding was contrary to an agreement to an agreement between parties
  • The foreign court was a seriously inconvenient forum (in the case of jurisdiction based only on personal service).

If the cause of action resulted in a defamation judgment obtained in a foreign country, the court before which the matter is brought is in New York first determines whether the defamation law applied in the foreign court provided at least as much protection for freedom of speech as would be provided by both the United States and New York constitutions.

Now, assuming the judgment satisfies all of the aforesaid concerns, in order to have the judgment filed in New York, the creditor’s New York attorney can either file a summons and complaint on the foreign country judgment, or a motion for summary judgment in lieu of the complaint, with an authenticated copy of the judgment as an exhibit.

After the defendant is served, the plaintiff will have to demonstrate to the court through motion documents that the judgment was final, conclusive and enforceable, and satisfies all of the previously mentioned concerns that would prevent non-recognition in New York state. The plaintiff will have to demonstrate that the defendant(s) were served and accorded due process in the original action and that judgment was validly entered in a foreign state that provides impartial tribunals or procedures compatible with the requirements of due process of law.

As can be seen by the requirements of the New York civil rules, whether a foreign country judgment can be entered in New York requires a different level of examination than that of judgments entered in other U.S. States or territories.

If you need help domesticating a foreign country judgment in New York, contact Frank, Frank, Goldstein and Nager for a free consultation. We have the experience that pays.