Wimmer Canada, Inc. v. Abele Tractor & Equipment Co.

299 A.D.2d 47, 750 N.Y.S.2d 331, 2002 N.Y. App. Div. LEXIS 10365
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 31, 2002
StatusPublished
Cited by15 cases

This text of 299 A.D.2d 47 (Wimmer Canada, Inc. v. Abele Tractor & Equipment Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wimmer Canada, Inc. v. Abele Tractor & Equipment Co., 299 A.D.2d 47, 750 N.Y.S.2d 331, 2002 N.Y. App. Div. LEXIS 10365 (N.Y. Ct. App. 2002).

Opinion

OPINION OF THE COURT

Spain, J.

Plaintiff is a Canadian corporation with its principal offices located in Quebec and it is engaged in the business of manufacturing, distributing and servicing heavy construction equipment, parts and materials. Plaintiff instituted this action to enforce a judgment of the Superior Court, Province of Quebec, pursuant to CPLR article 53, this state’s codification of the Uniform Foreign Country Money-Judgments Recognition Act (see CPLR 5301, 5303, 5309). Plaintiff obtained the Canadian default judgment against defendant, a New York corporation which maintains offices in Albany County and is engaged in the retail business of selling and servicing heavy machines and parts. The Canadian court judgment was for the sum certain of $67,908.58 in Canadian dollars (United States equivalent of $45,843.91). Plaintiff moved for summary judgment (see CPLR 5303), which defendant opposed arguing that recognition was precluded as the Quebec court lacked personal jurisdiction over it (see CPLR 5304 [a] [2]), and that recognition should be denied as well because subject matter jurisdiction was lacking (see CPLR 5304 [b] [1]) and Quebec was an inconvenient forum (see CPLR 5304 [b] [7]). In a well-reasoned decision, Supreme Court rejected defendant’s objections to comity and granted plaintiff’s motion ruling, among other things, that pursuant to CPLR 5305 (b), the Quebec court had personal jurisdiction over defendant, and awarded plaintiff the sum of $45,843.91 (United States dollars) plus interest. On defendant’s appeal, we affirm.

As a matter of international comity, CPLR article 53 accords recognition by this state to a final foreign country judgment (see CPLR 5303), which grants or denies the payment of a sum of money (see CPLR 5301 [b]; 5303) provided the foreign court had personal jurisdiction over the judgment debtor defendant and the judgment was rendered by a system that provides an impartial tribunal that utilizes procedures compatible with due process (see CPLR 5304 [a]; see also Hilton v Guyot, 159 US 113, 163-164; CIBC Mellon Trust Co. v Mora Hotel Corp., 296 AD2d 81, 87-99; S.C. Chimexim S.A. v Velco Enters. Ltd., 36 F [49]*49Supp 2d 206, 211-212). As the proponent, plaintiff bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition — i.e., due process and personal jurisdiction — do not exist (see CPLR 5304 [a]) and that CPLR article 53 requirements are satisfied (see CPLR 5302; CIBC Mellon Trust Co. v Mora Hotel Corp., supra; Ackermann v Levine, 788 F2d 830, 842 n 12, citing Hilton v Guyot, supra). CPLR article 53 also provides additional grounds upon which recognition of foreign judgments may be denied, including the foreign court’s lack of subject matter jurisdiction and inconvenience as a forum (see CPLR 5304 [b]).

Initially, defendant does not challenge the partiality or procedural fairness of the Canadian judicial system (see CPLR 5304 [a] [1]), recognized as “a [sibling] common law jurisdiction with procedures akin to our own” (Clarkson Co., Ltd. v Shaheen, 544 F2d 624, 630 [2d Cir 1976]; see Canadian Imperial Bank of Commerce v Saxony Carpet Co., Inc., 899 F Supp 1248, 1252, affd 104 F3d 352; Lenchyshyn v Pelko Elec., 281 AD2d 42, 46-47; Constandinou v Constandinou, 265 AD2d 890). Rather, defendant’s primary challenge is that the Quebec court did not have personal jurisdiction over it since it did not appear in the Canadian action, maintains no offices in Canada and did not transact any business there. CPLR 5305 (a) sets forth a nonexclusive list of bases which are deemed adequate for the foreign court’s exercise of in personam jurisdiction over the judgment debtor. While clearly none of the bases listed in CPLR 5305 (a) are applicable here, subdivision (b) contains a broad catchall provision which provides that “[t]he courts of this state may recognize other bases of jurisdiction” (CPLR 5305 [b]). Although this Court has not previously had occasion to apply this provision, we concur that as a general rule, it will be “appropriate for New York to recognize for a foreign judgment, under * * * CPLR 5305 [(b)], any jurisdictional basis it recognizes in its internal law” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5305:l, at 556; accord CIBC Mellon Trust Co. v Mora Hotel Corp., supra at 95-97; Porisini v Petricca, 90 AD2d 949, 950; Canadian Imperial Bank of Commerce v Saxony Carpet Co., Inc., supra at 1252-1253; see also Silberman, Enforcement and Recognition of Foreign Country Judgments in the United States, 670 PLI/Lit 429 [March 2002]; Restatement [Third] of Foreign Relations Law §§ 481, 482).

Viewing the totality of circumstances, we find that the Quebec court had a valid basis for exercising personal jurisdic[50]*50tion over defendant as defendant purposefully transacted business in Quebec within the meaning of this state’s long-arm jurisdictional statute (see CPLR 302 [a] [1]; 5304 [a] [2]; 5305 [b]). Also, there was a direct nexus between the business transacted in Canada and plaintiffs Canadian cause of action, which was based upon defendant’s failure to pay on the two lines of credit that plaintiff extended to defendant in Canada (see McGowan v Smith, 52 NY2d 268, 271-272; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 456-457, cert denied sub nom. Estwing Mfg. Co., Inc. v Singer, 382 US 905; Dolec Consultants v Lancer Litho Packaging Corp., 245 AD2d 415; Soloman Ltd. v Biederman & Co., 177 AD2d 350; cf. Citadel Mgt. v Hertzog, 182 Misc 2d 902, 905-906). In this regard, the evidence submitted by plaintiff to the Quebec court showed that between April 1998 and January 1999, the parties had an ongoing business relationship by means of international communication systems involving numerous transactions in which defendant placed orders for machinery and equipment by sending purchase orders to plaintiff via telephone calls, mailing and faxes. In addition, defendant delivered the machinery/ equipment to plaintiff and made repairs on them and, at defendant’s request, plaintiff extended two lines of credit to defendant in Quebec to facilitate upcoming transactions which, in combination, constituted purposefully transacting business in Quebec (see CPLR 302 [a] [1]; 5305 [b]; Parke-Bernet Galleries v Franklyn, 26 NY2d 13, 16; Camel Invs. v Transocean Capital [Bermuda], 195 AD2d 533; Soloman Ltd. v Biederman & Co., supra; Canadian Imperial Bank of Commerce v Saxony Carpet Co., Inc., 899 F Supp 1248, 1253, supra; see also Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574; Thorpe v McCaffrey, 157 AD2d 879).

Contrary to defendant’s contentions, it was not necessary that plaintiff show that the contract was executed in Canada

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Cite This Page — Counsel Stack

Bluebook (online)
299 A.D.2d 47, 750 N.Y.S.2d 331, 2002 N.Y. App. Div. LEXIS 10365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wimmer-canada-inc-v-abele-tractor-equipment-co-nyappdiv-2002.