Affidavit in Opposition to Summons and Notice of Motion for Summary Judgment in Lieu of Complaint seeking to domesticate a foreign-country judgment in New York State, pursuant to N.Y. CPLR 3213 and N.Y. CPLR Article 53:  


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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------X PAT PETROMAN,                                                               Plaintiff,                                          -against- DEBORAH DENDALSON,                                                               Defendant. ---------------------------------------------------------------X

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.

     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