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Sample
Litigation Document created by a lawyer at the law firm of Peter M.
Agulnick, P.C.:
Affidavit
in Opposition to Summons and Notice of Motion for Summary Judgment in
Lieu of Complaint seeking to domesicate a foreign-country judgment in
New York State, pursuant to NY CPLR 3213 and NY CPLR Article 53
A lawyer at this
office can handle this or other matters for you. Please contact
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NOTE: Names of parties and, perhaps, other information has been changed
or redacted to protect the privacy of this law firm's clients.
SUPREME COURT OF THE STATE OF NEW
YORK
COUNTY
OF NEW YORK
---------------------------------------------------------------X
PAT PETROMAN,
Plaintiff,
-against-
DEBORAH DENDALSON,
Defendant.
---------------------------------------------------------------X
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Index No.
___________
AFFIDAVIT IN OPPOSITION
|
State of New York
)
) ss:
County of ___________ )
DEBORAH
DENDALSON, being duly
sworn, deposes and says:
1. I
am the Defendant in the above-captioned action.
I am fully familiar with the facts of this
case and the procedural
history of this case based upon first-hand knowledge.
2. I
submit this affidavit in opposition to the Plaintiff’s Summons and
Notice of Motion
for Summary Judgment in Lieu of Complaint, which seeks, pursuant to
N.Y. CPLR
3213 and N.Y. CPLR Article 53, to domesticate Plaintiff PETROMAN’s
foreign-country judgment against me
here in New
York
State.
FACTS
3. Plaintiff
is the biological father of one of my children.
Plaintiff and I were previously living
together for a substantial period
of time.
4. After
suffering serious physical abuse at the hands of Plaintiff, I brought a
lawsuit
against Plaintiff in Canada
for child support and spousal support. The
action was brought in the Court of
Queen’s Bench of Alberta,
Judicial District of Edmonton
(hereinafter “Canadian court”). A copy
of the “Statement of Claim” that my Canadian counsel filed is annexed
as Exhibit B to Plaintiff’s moving
papers.
5. I
also obtained restraining orders in Canada
restraining Plaintiff from calling or physically
abusing me. Plaintiff violated these
Canadian restraining order resulting in him being arrested, convicted,
and
incarcerated in Canada.
6.
After
I filed the action in the Canadian
court, Plaintiff continued to threaten
and harass me – including death threats.
Plaintiff also called family members of mine
and told them he was going
to kill me.
7. Under
the circumstances, I feared for my life.
I decided that I wanted to distance myself
from Plaintiff. I, therefore, decided to
abandon the Canadian
action hoping that Plaintiff PETROMAN
would leave me alone forever.
8. After
informing my Canadian counsel that I refused to continue with the
Canadian lawsuit,
she retired from being my counsel of record by serving and filing upon
all parties
paperwork entitled “Notice of Ceasing to Act.” This
“Notice of Ceasing to Act” officially
withdrew her as counsel of record for me.
A copy is annexed here as “Exhibit A.”
9. The
“Notice of Ceasing to Act” states my last known address where further
litigation papers, if any, were supposed to be served.
(This “Notice of Ceasing to Act” is stamped received by the Canadian court on
January 2003.)
10. After
my Canadian solicitor withdrew as my counsel of record, I never
received
any further legal papers concerning the Canadian case.
In fact, I never even learned of any
counterclaims
or the Canadian default judgment until I received the present Summons
and
Notice of Motion for Summary Judgment in Lieu of Complaint, which is
pending in
this Court.
11. Plaintiff’s
present moving papers (including the affidavit of service of the
“Statement of
Defence and Counterclaim”) assert that Plaintiff served the “Statement
of
Defence and Counterclaim” on February
11, 2003.
But it was served not upon me; it was
incorrectly served upon my old Canadian
Counsel who, at that point, had been retired as counsel of record for
me as of
January 2003.
ARGUMENT
12. My
present attorney tells me that, unlike sister-state judgments,
foreign-country
judgments are not automatically entitled to full faith and credit under
New
York
law and the United States Constitution. See
Fairchild, Arabatzis & Smith, Inc. v. Prometco
Co., Ltd., 470
F.Supp. 610, 614 (S.D.N.Y. 1979).
13.
Most
important, my present attorney has informed me that N.Y. CPLR 5304
states that New
York courts should not domesticate foreign-country judgments where, as
here, the
judgment debtor did not receive proper notice of proceedings to enable
him or
her to defend.
13. Specifically,
N.Y. CPLR 5304(b)(1) states that New
York
courts should not domesticate foreign-country
judgments where “the
defendant in the proceedings in the foreign
[country] court did not receive notice
of the proceedings in sufficient time to
enable him to defend” (emphasis added).
14. Moreover, legal
commentators have said
that CPLR 5304(b)(2) is not discretionary, but mandatory upon New
York
courts:
“A want of fair
notice and time
to defend in the foreign forum is made a ground for refusing
recognition under
paragraph 2 [NY CPLR 5304(b)(2)]. This goes to the root of due process
as we
understand it, and a want of reasonable notice and opportunity to
defend may
therefore require that recognition be
refused, i.e., make it mandatory rather than, as subdivision (b)(2) of
CPLR
5304 would have it, discretionary” David
Siegel, CPLR 5304 McKinney Commentary, C5304:1. (1997 Vol) (italics in
original).
15.
Clearly, N.Y. CPLR 5304(b)(2) protects
people in the identical situation that I am in now.
I had no notice of the counterclaims in the Canadian
Court
and no opportunity to defend
under the circumstances.
16.
Accordingly, pursuant to N.Y. CPLR 5304(b)(2),
this Court should deny the present motion and dismiss Plaintiff’s
entire action
with prejudice.
17. In
addition to the reasons stated above,
this Court should deny Plaintiff’s motion because Plaintiff has failed
to cite
the Canadian statutes concerning service of a counterclaim. Cf.
Augusta Lumber & Supply, Inc. v.
Herbert H. Sabbeth Corp., 101 A.D.2d 846, 846, 846, 475 N.Y.S.2d
878, 879
(2d Dep’t 1984); Bank of America v. Padded
Wagon, Inc., Index # 6925/05 (Sup. Ct.,
Bronx
Co. 2005) (movant “has failed inexplicably failed to annex or even cite
Georgia’s
service-of-process statutes.”)
WHEREFORE, Defendant DEBORAH
DENDALSON
requests that this Court issue an Order
denying Plaintiff’s Summons and Notice of Motion for Summary Judgment
in Lieu
of Complaint, dismissing Plaintiff’s entire action with prejudice, and
granting
such other relief that is appropriate.
________________________________
DEBORAH
DENDALSON
Sworn to me
this ____ day
of
___________, 20___.
_______________________
NOTARY
PUBLIC
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