USA – NEW YORK Trends and Developments Contributed by: Christopher Harris and Leah Friedman, Latham & Watkins
Choosing the right forum Procedure for seeking recognition
New York. The effect of having a judgment recognised in New York is that (as explained below) it is domesti - cated in New York, so the assets within New York can then be pursued. Accordingly, there will be less reason to have a foreign judgment domesticated in New York if the judgment debtor does not have assets here. Burden of proof Under Article 53, the party seeking recognition bears the initial burden of establishing that the judgment is entitled to recognition (ie, that the threshold require - ments discussed above have been satisfied, in accordance with Section 3c of the 2005 Act). The burden then shifts to the party opposing recogni - tion to establish a ground for non-recognition. See CPLR Section 5304 (c); Bridgeway Corp . v Citibank , 45 F. Supp. 2d 276, 286 (S.D.N.Y. 1999), aff’d, 201 F.3d 134 (2d Cir. 2000). If the party resisting recogni - tion establishes that the judgment is for defamation, then the party seeking recognition bears the burden of establishing that the issuing jurisdiction provides adequate protections for freedom of speech and the press. See CPLR Section 5304 (c). Statute of limitations An action to recognise a foreign judgment must be commenced within the earlier of: (i) the time during which the judgment is effective in the foreign country; or (ii) 20 years from the date the judgment became Once a foreign judgment is recognised by a New York court, it is “domesticated”, meaning that it is treated as equivalent to a domestic judgment of the recognis - ing court. Abu Dhabi Com . Bank PJSC v Saad Trad- ing , 986 N.Y.S.2d at 456–57. The judgment creditor may then deploy all available state-law enforcement mechanisms to satisfy the judgment. Enforcement mechanisms In New York, the available enforcement mechanisms include a writ of execution (a court order that directs a law enforcement officer to seize a judgment debtor’s property and sell it to satisfy a money judgment), gar - nishment of bank accounts and wages, and a judg - effective. CPLR Section 5303 (d). Post-Recognition Enforcement Domestic judgment equivalence
In New York, a judgment creditor seeking recogni - tion of a foreign judgment typically files an action in a New York state court (or, if diversity of citizenship or another basis for federal jurisdiction exists, a federal court) seeking recognition of the judgment. Under the Erie doctrine, a federal court sitting in diversity applies the judgment-recognition statute of the state in which it sits. Accordingly, a judgment creditor who brings a recognition action in New York federal court would still seek recognition under Article 53. See Erie R . R . Co . v Tompkins , 304 U.S. 64, 78 (1938); Banca Di Credito Cooperativo di Civitanova Marche e Montecosaro Soc . Cooperativa v Small , No 18-cv-11399, 2019 U.S. Dist. LEXIS 220066, at *6 (S.D.N.Y. 19 Dec. 2019) (“In this diversity action, the law governing the recognition of foreign judgments is the law of the forum state of New New York courts do not generally require personal jurisdiction over the judgment debtor or its property in a recognition action, unless the judgment debtor rais - es “colourable” and “nonfrivolous” statutory grounds for nonrecognition. See Lenchyshyn v Pelko Elec ., Inc., 723 N.Y.S.2d 285, 291 (App. Div. 2001) (“Consid - erations of logic, fairness, and practicality dictate that a judgment creditor be permitted to obtain recognition and enforcement of a foreign country money judg - ment without any showing that the judgment debtor is subject to personal jurisdiction in New York”); Abu Dhabi Com . Bank PJSC v Saad Trading , Contracting & Fin . Servs . Co ., 986 N.Y.S.2d 454, 456–57 (App. Div. 2014) (Article 53 does not require jurisdiction over judgment debtor or their property); but see Albania- BEG Ambient Sh . p . k . v Enel S . p . A ., 73 N.Y.S.3d 1, (App. Div. 2018) (describing that, where a judgment debtor raises “colourable” and “nonfrivolous” statu - tory grounds for nonrecognition, “there must be either an in personam or an in rem jurisdictional basis for maintaining the recognition and enforcement pro - York”) (internal citation omitted). Jurisdiction over judgment debtor
ceeding... in New York”). Strategic considerations
In determining whether to bring a judgment-recogni - tion action in New York, a judgment creditor should consider whether the judgment debtor has assets in
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