Recognition of Foreign Country Judgments and Summary Judgment in Lieu of Complaint

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Posted on: Jul 12 2023

Under New York law, there are two methods by which a person can domesticate a foreign judgment – i.e., a judgment obtained outside the State of New York.

The first method is contained in Article 54 of the Civil Practice Law and Rules (“CPLR”), which codified the Uniform Enforcement of Foreign Judgments Act. Under CPLR § 5402(a), to recognize a foreign judgment, a judgment creditor must: (1) file the foreign judgment within 90 days of the date of the judgment’s authentication in the office of any county clerk of the state; and (2) file an affidavit, stating (i) that the judgment was not obtained by default in appearance or by confession of judgment, (ii) that the judgment is unsatisfied in whole or in part, (iii) that the amount remaining on the judgment is unpaid, (iv) that enforcement of the judgment has not been stayed, and (v) setting forth the name and last known address of the judgment debtor.

If the judgment creditor complies with the requirements of CPLR § 5402, under CPLR § 5402(b), the foreign judgment will be treated “in the same manner as a judgment of the supreme court of this state.” Therefore, a foreign judgment that is filed in accordance with the requirements of CPLR § 5402 will have the same legal effect as a judgment entered in New York and will be “subject to the same procedures, defenses, and proceedings for reopening, vacating or staying” a New York judgment.

Since CPLR § 5402(a) specifically excludes judgments obtained by default, a foreign judgment creditor must use Article 53 of the CPLR to recognize and enforce a money judgment – the second method of recognizing a foreign judgment.

Article 53 of the CPLR[1] covers any “foreign country judgment” granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or “a judgment for divorce, support or maintenance, or other judgment rendered in connection with domestic relations.”[2] New York courts generally recognize a foreign money judgment, provided that (a) procurement of the judgment meets basic notions of due process and (b) the original court had personal jurisdiction over the defendant. The latter was at tissue in Kingdom of Sweden v. Pashkovski, 2023 N.Y. Slip Op. 23202 (Sup. Ct., Kings County July 10, 2023) (here), the subject of today’s article.

CPLR § 5304 provides numerous grounds, both mandatory and discretionary, for resisting recognition of a foreign judgment. The Act makes clear that the party seeking recognition of a foreign judgment bears the burden of establishing that the judgment is subject to the Act,[3] while the party resisting recognition has the burden of establishing that a specific ground for non-recognition applies.[4]

When a judgment creditor seeks recognition of a foreign judgment as an original matter, the party seeking recognition must file an action on the judgment, or a motion for summary judgment in lieu of complaint, to obtain such recognition.[5] However, when the judgment creditor seeks recognition in a pending action, he/she may do so by counterclaim, cross-claim, or affirmative defense.[6]

CPLR § 3213 governs motions for summary judgment in lieu of complaint. It can be used “[w]hen an action is based upon an instrument for the payment of money only or upon any judgment.” It is “intended to provide a speedy and effective means of securing a judgment on claims presumptively meritorious … [and where] a formal complaint is superfluous and even the delay incident upon waiting for an answer and then moving for summary judgment is needless.”[7] Thus, where a foreign judgment creditor satisfies the requirement for recognition in Article 53 or 54 of the CPLR, a motion under CPLR § 3213 can provide a cost-effective method of recognizing and enforcing the judgment without the need to engage in time-consuming and expensive discovery and litigation.

Kingdom of Sweden v. Pashkovski

Kingdom of Sweden involved the attempt to recognize and enforce a Swedish money judgment obtained by default.

The judgment was obtained on July 22, 2022, when the Örebro District Court in Sweden issued a default judgment (“Swedish Default Judgment”) to The Swedish Board of Student Finance against defendant Milena Daniella Koste Pashkovski for unpaid student loans. On October 20, 2022, the Kingdom of Sweden commenced an action against defendant in the Supreme Court, New York County by filing a summons and notice of motion for summary judgment in lieu of complaint to domesticate the Swedish Default Judgment against defendant on behalf of The Swedish Board of Student Finance. Plaintiff claimed the right to do so pursuant to Article 53 of the CPLR.

Defendant opposed the motion and cross-moved for summary judgment, contending that she was not made aware of the Swedish Default Judgment. Defendant maintained that, until 2007, she was paying back the loans and had not heard anything further about them until November 8, 2022, when she received papers from the Kingdom of Sweden that it had taken legal action against her in New York. Additionally, Defendant argued that (a) there were discrepancies with the English translation of the Swedish Default Judgment that plaintiff submitted; (b) she was unemployed, experiencing financial difficulties, and had medical problems; (c) the judgment was not admissible in New York; (d) she was not afforded due process; and (e) the process was unfair in nature in that, among other things, there was no proof that the loans remained outstanding.

The motion court denied plaintiff’s motion.

As an initial matter, the motion court held that the Kingdom of Sweden was not the real party in interest and, therefore, lacked standing to bring the action. The motion court observed that the Kingdom of Sweden did not appear on any of the documents until the action was filed. In fact, noted the motion court, the Swedish Default Judgment was issued by the Örebro, Sweden court to The Swedish Board of Student Finance against defendant; the judgment was not issued to the Kingdom of Sweden. Accordingly, the Kingdom of Sweden, said the motion court, lacked standing to bring the action because it was not the judgment creditor.

Turning to Article 53 of the CPLR, the motion court held that the Swedish Default Judgment should not be recognized and enforced because it did not comport with notions of due process and because the foreign court lacked personal jurisdiction over defendant. The motion court found that defendant did not receive notice in Sweden sufficient to enable her to defend against the action. The motion court accepted defendant’s argument that: (a) she was presented with a document (i.e., a notice) in Swedish, a language in which she is not conversant, and asked to sign it; and (b) she had not been in Sweden since 1998, as she was only in the country from September 1995 through June 1998 while attending the University of Örebro, Sweden.

Moreover, the motion court held that the translation of the Swedish Default Judgment did not comport with CPLR § 2101(b).[8] The motion court noted that plaintiff offered translations of the notice of the Swedish action and the judgment without an affidavit from the translator as is required by CPLR § 2101(b). The motion court stated that the translator did not submit an affidavit; instead, he provided “a self-sworn certification.” That certification explained the motion court, “did not set forth his qualifications — just that he is ‘familiar with the English and Swedish languages.’” “Without presenting himself to a notary public or another official authorized by law to take oaths, Christofferson’s certifications do not constitute affidavits,” said the motion court. “Therefore,” concluded the motion court, “there [was] a defect in content, not form.”

In sum, “[w]ithout a properly attested translation of what Defendant signed (and a properly attested translation of the judgment),” the motion court denied plaintiff’s motion and granted defendant’s cross-motion, holding “that the Örebro court lacked personal jurisdiction over Defendant, Defendant did not receive notice in sufficient time to enable her to defend, the judgment was repugnant to New York State policy, and the judgment did not comport with New York’s notions of due process.”[9]

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Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] Article 53 was amended on June 11, 2021, when Governor Andrew M. Cuomo signed into law the Uniform Foreign Country Money Judgments Act, which amended New York’s Uniform Foreign Country Money-Judgments Recognition Act of 1970.

[2] CPLR § 5302(b).

[3] CPLR § 5302(c).

[4] CPLR § 5304(c).

[5] CPLR § 5303(b).

[6] CPLR § 5303(c).

[7] Interman Indus. Products, Ltd. v. R.S.M. Electron Power, Inc., 37 N.Y.2d 151, 154 (1975) (citations and internal quotation marks omitted).

[8] CPLR § 2101(b) provides: “Each paper served or filed shall be in the English language which, where practicable, shall be of ordinary usage. Where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate.”

[9] Citing CPLR § 5304(a)(3), (b)(1), (3), (8).