2024 WL 3286989
Supreme Court, Appellate Division, Fourth Department, New York.
In the Matter of CAYUGA NATION, Petitioner-Respondent,
v.
Dustin PARKER and Dustin Parker, doing business as Pipekeepers, Respondents-Appellants. (Appeal No. 1.)
270
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CA 23-00163
|
Entered: July 3, 2024
Appeal from a judgment of the Supreme Court, Cayuga County (Thomas G. Leone, A.J.), entered January 11, 2023. The judgment granted petitioner a money judgment against respondents.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.
Memorandum: In appeal No. 1, respondents, Dustin Parker and Dustin Parker, doing business as Pipekeepers, appeal from a judgment granting petitioner’s CPLR article 4 petition to domesticate a Cayuga Nation Civil Court (Nation Court) judgment in the amount of $126,000, which was granted after a finding by the Nation Court that respondents were in contempt of its order permanently enjoining respondents from the operation of Pipekeepers. The Nation Court assessed a fine of $1,000 per day against respondents, totaling $126,000. In appeal No. 2, respondents appeal from a judgment granting a separate CPLR article 4 petition to domesticate a judgment of the Nation Court in the amount of $39,050, which was granted after a finding by the Nation Court that respondents were in violation of a Cayuga Nation ordinance, and the Nation Court assessed a fine of $1,000 per day plus costs, totaling $39,050.
In each appeal, respondents contend, inter alia, that the respective foreign country judgment is a fine and, therefore, may not be recognized under CPLR article 53. We agree, and we therefore reverse the judgments in appeal Nos. 1 and 2 and dismiss the petitions.
Petitioner argues that respondents’ contention is unpreserved. We conclude that the contention falls within “the rarely invoked exception [to the preservation requirement] for a newly raised point of law that is decisive in a civil case and could not have been obviated by factual showings or legal countersteps if it had been raised below” (Misicki v. Caradonna, 12 N.Y.3d 511, 519, 882 N.Y.S.2d 375, 909 N.E.2d 1213 [2009] [internal quotation marks omitted]; see Wells Fargo Bank v. Islam, 174 A.D.3d 670, 672, 106 N.Y.S.3d 76 [2d Dept. 2019]; Oram v. Capone, 206 A.D.2d 839, 840, 615 N.Y.S.2d 799 [4th Dept. 1994]).
With respect to the merits, 22 NYCRR 202.71 provides that: “[a]ny person seeking recognition of a judgment, decree or order rendered by a court duly established under tribal or federal law by any Indian tribe, band or nation recognized by the State of New York or by the United States may commence a special proceeding in Supreme Court pursuant to Article 4 of the CPLR by filing a notice of petition and a petition with a copy of the tribal court judgment, decree or order appended thereto in the County Clerk’s office in any appropriate county of the state. If the court finds that the judgment, decree or order is entitled to recognition under principles of the common law of comity, it shall direct entry of the tribal judgment, decree or order as a judgment, decree or order of the Supreme Court of the State of New York. This procedure shall not supplant or diminish other available procedures for the recognition of judgments, decrees and orders under the law.” Thus, under the regulation, filing a notice of petition and a petition with a copy of the tribal court judgment, decree or order appended thereto initiates review by a Supreme Court Justice; mere compliance with those procedural guidelines, however, does not entitle recognition of a foreign judgment.
A tribal court judgment is a foreign judgment (see Unkechaug Indian Nation v. Treadwell, 192 A.D.3d 729, 733, 144 N.Y.S.3d 44 [2d Dept. 2021]; see also Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15, 107 S.Ct. 971, 94 L.Ed.2d 10 [1987]). Judgments of foreign countries are recognized in New York under the doctrine of comity in accordance with the principles and procedures set forth in article 53 of the CPLR (see Byblos Bank Europe, S.A. v. Sekerbank Turk Anonym Syrketi, 10 N.Y.3d 243, 247, 855 N.Y.S.2d 427, 885 N.E.2d 191 [2008]). “[C]omity is not a rule of law, but a voluntary decision by one state to defer to the policy of another, especially in the face of a strong assertion of interest by the other jurisdiction” (Boudreaux v. State of La., Dept. of Transp., 11 N.Y.3d 321, 326, 868 N.Y.S.2d 575, 897 N.E.2d 1056 [2008], cert denied 557 U.S. 936, 129 S.Ct. 2864, 174 L.Ed.2d 578 [2009] [internal quotation marks omitted]). “It is well settled that laws of foreign governments have extraterritorial jurisdiction only by comity .... The principle which determines whether we shall give effect to foreign legislation is that of public policy and, where there is a conflict between our public policy and application of comity, our own sense of justice and equity as embodied in our public policy must prevail” (Lippens v. Winkler Backereitechnik GmbH [Appeal No. 2], 138 A.D.3d 1507, 1509, 31 N.Y.S.3d 340 [4th Dept. 2016] [internal quotation marks omitted]). “ ‘Comity,’ in a legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other” (Hilton v. Guyot, 159 U.S. 113, 163-164, 16 S.Ct. 139, 40 L.Ed. 95 [1895]; see Sorensen v. Sorensen, 219 App. Div. 344, 348, 220 N.Y.S. 242 [2d Dept. 1927]). “The doctrine of comity, which applies to the acts of Indian Nations as well as those of the courts of sister states and foreign nations, provides that the courts of this State have discretion to consider whether the determination comports with the laws and public policy of this State and to determine whether to enforce it” (Unkechaug Indian Nation, 192 A.D.3d at 733, 144 N.Y.S.3d 44).
“Under CPLR article 53, a judgment issued by a foreign country is recognized and enforceable in New York State if it is ‘final, conclusive and enforceable where rendered’ ” (Daguerre, S.A.R.L. v. Rabizadeh, 112 A.D.3d 876, 877, 978 N.Y.S.2d 80 [2d Dept. 2013], quoting CPLR 5302 [a] [2]). Article 53, however, “does not apply to a foreign country judgment, even if the judgment grants or denies recovery of a sum of money, to the extent the judgment is ... a fine or penalty” (CPLR 5302 [b] [2] [emphasis added]). “A party seeking recognition of a foreign country judgment has the burden of establishing that [article 53] applies to the foreign country judgment” (CPLR 5302 [c]; see Gemstar Can., Inc. v. George A. Fuller Co., Inc., 127 A.D.3d 689, 690, 6 N.Y.S.3d 552 [2d Dept. 2015]; Trejos Hermanos Sucesores S.A. v. Verizon Communications Inc., 2024 WL 149551, *3 [S.D.N.Y., Jan. 12, 2024, No. 1:21-cv-08928 (JLR)]).
Here, there is no dispute that each of the foreign country judgments at issue in these appeals is a fine. The foreign country judgments were granted by the Nation Court against respondents after the Nation Court found respondents in contempt of an order permanently enjoining respondents from operating Pipekeepers and in violation of a Cayuga Nation ordinance and assessed fines based on those findings. Thus, inasmuch as petitioner failed to meet its burdens of establishing that article 53 applied to the foreign country judgments (cf. Trejos Hermanos Sucesores S.A., 2024 WL 149551 at *5; Yi Feng Leather Intl. Ltd. v. Tribeca Design Showroom, LLC, 2019 WL 4744620, *2 [S.D.N.Y., Sept. 30, 2019, No. 17 Civ. 05195 (AJN)]; see generally Invest Bank PSC v. Al Tadamun Glass & Aluminium Co. LLC, 77 Misc.3d 1202[A], 2022 N.Y. Slip Op. 51096[U], *2-3, 2022 WL 16942817 [Sup. Ct., N.Y. County 2022]), the burdens never shifted to respondents to establish a mandatory or discretionary ground for non-recognition of the judgments under CPLR 5304 (see CPLR 5302 [b] [2]; CPLR 5304 [c]; Vinogradov v. Sokolova, 77 Misc.3d 284, 290, 177 N.Y.S.3d 464 [Sup. Ct., N.Y. County 2022]; see generally Stumpf AG v. Dynegy Inc., 32 A.D.3d 232, 233, 820 N.Y.S.2d 24 [1st Dept. 2006]) and the petitions must be dismissed.
All Citations
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