The following numbered papers read on this motion by plaintiff for summary judgment in lieu of complaint and cross motion by defendants to dismiss. PAPERS NUMBERED Amended Notice of Motion-Affidavits-Exhibits EF 1-18, 20-21 Amended Notice of Cross-Motion-Affidavit-Exhibits EF 23-31, 51 Reply EF 32-50, 52-53 Upon the foregoing cited papers, and after Microsoft Teams conference, it is ordered that plaintiff’s motion for summary judgment in lieu of complaint, and defendants’ cross motion to dismiss, are consolidated for disposition, and are determined as follows: On March 2, 2022, plaintiff Jeffrey Baikowitz, acting in his capacity as curator of the property of his father, Harry Baikowitz (“Harry”), commenced a prior action in the Superior Court of Quebec, Montreal District (“Prior Action”), against the defendants, Yerachmeal Jacobson (“Jacobson”) and Bluejay Management, LLC (“Bluejay”), a company Jacobson co-founded, seeking to recoup $750,000.00 invested by Harry in four of defendants’ projects. In the Prior Action, plaintiff alleged his father was mentally impaired when he invested the money with defendants. On September 30, 2022, plaintiff obtained a default judgment in the Prior Action in the amount of $1,052,350.00 Canadian dollars (“Judgment”). Plaintiff now moves for summary judgment in lieu of complaint pursuant to CPLR 3113 and 5303 to domesticate and enforce the Judgment. Defendants cross-move to dismiss pursuant to CPLR 5304 for lack of personal and subject matter jurisdiction. Pursuant to Article 53 of the CPLR, a foreign country money judgment which is final and conclusive may be enforced in this State by a motion for summary judgment in lieu of complaint (see CPLR 5303.) Under the doctrine of comity, the New York courts will recognize the judgment provided it is based on procedures compatible with our concepts of due process, by tribunals which are fair and impartial, unless grounds for non-recognition exist (see CPLR 5304[a][1] and [2]). Pursuant to CPLR 5304, grounds for non-recognition include lack of personal jurisdiction or subject matter jurisdiction by the foreign court. Plaintiff, as the party seeking recognition, bears the burden of making a prima facie showing that the mandatory grounds for non-recognition do not exist (see CPLR 5304 [a]). Conversely, a defendant seeking to resist recognition has the burden of establishing that a ground for non-recognition exists (see CPLR 5304[c]). Initially, as to the issue of subject matter jurisdiction, plaintiff has met its burden of establishing that Superior Court of Quebec, Montreal District had subject matter jurisdiction in the Prior Action. Pursuant to article 3148 of the Civil Code of Quebec (“CCQ”), Quebec authorities have jurisdiction in cases where, among other things, “a fault was committed in Quebec, injury was suffered in Quebec, an injurious act or omission occurred in Quebec or one of the obligations arising from a contract was to be performed in Quebec.” In this matter, the evidence shows that Harry is a Canadian citizen, that he lives in Quebec, and that at least some of the money he invested with defendants were sent by Harry while he was in Canada from his Canadian bank accounts. Thus, subject matter jurisdiction cannot serve as a basis for non-recognition of the Judgment. Turning to the issue of personal jurisdiction, pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, service in a signatory country may be made “by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory.” In the United States, the methods prescribed for service on an individual under the Hague Convention are set forth in rule 4 (e) (1) and (2) of the Federal Rules of Civil Procedure (see Daguerre, S.A.R.L. v. Rabizadeh, 112 AD3d 876, 878-79 [2013]). Rule 4 (e) (1) authorizes service to be made by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made,” and rule 4 (e) (2) sets forth three specific authorized methods of service on an individual as: (A) delivery to the individual personally; (B) leaving a copy at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.” In support of its motion, plaintiff submitted the affidavits of a process server indicating that service was effected on defendant Jacobson “by speaking to and leaving it with ‘John Doe’ at the said place of employment located at 301 Mill Road, Suite L6″. The affidavit of service further notes John Doe “stated he is authorized to accept for Yerachmeal Jacobson.” The affidavit of service does not provide any physical description of the “John Doe” allegedly served, and does not state that an additional mailing was made. Service upon a person of suitable age and discretion at a defendant’s actual place of business is a state law method of service authorized by CPLR 308 (2), and thus permissible under rule 4 (e) (1). However, CPLR 308 (2) additionally requires that the summons be mailed to either the defendant’s last known address or actual place of business, and personal jurisdiction is not acquired pursuant to CPLR 308 (2) unless both the delivery and mailing requirements have been complied with (see Daguerre, S.A.R.L. v. Rabizadeh, 112 AD3d 876, 878 [2013]). Since the affidavit of service did not state that the summons was additionally mailed to Jacobson, it was insufficient to establish that service was properly effected pursuant to CPLR 308 (2) (see Id). Nor does the evidence show that Jacobson was served pursuant to rule 4 (e) (2), as plaintiff does not claim that he was personally served, or that he was served at his dwelling or usual place of abode pursuant to 4(e)(2)(A) or (B). Thus, service could only have been completed pursuant to rule 4 (e) (2) (C), which requires delivery to an agent authorized by appointment or by law to receive service of process. In support of their cross motion, defendants submit, among other things, the affidavit of Jacobson, who states that he was not served; that he has never appointed anyone to receive service of process on his behalf; and that there has never been a Court proceeding that conveyed the right of anyone to receive service of process on his behalf. Thus, defendants have met their burden of establishing that a ground for non-recognition exists as to defendant Jacobson. As to defendant Bluejay, rule 4 (H) of the Federal Rules of Civil Procedure permit service by: (1) (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (1) (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process; or (2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(I). Personal jurisdiction over a limited liability company such as Bluejay under the CPLR is governed by CPLR 311-a, which permits service upon: “(i) any member of the limited liability company in this state, if the management of the limited liability company is vested in its members, (ii) any manager of the limited liability company in this state, if the management of the limited liability company is vested in one or more managers, (iii) to any other agent authorized by appointment to receive process, or (iv) to any other person designated by the limited liability company to receive process, in the manner provided by law for service of a summons as if such person was a defendant.” The affidavit of service upon Bluejay states that service was completed “by speaking to and leaving the same thereof with ‘John Doe’…a person appearing in care and in control and/or management and authorized to accept service of legal process on behalf of Bluejay Management LLC.” The affidavit goes on to say that the process server was “able to identify the person by means of verbal acknowledgment.” No description of the John Doe allegedly served is provided in the affidavit of service. In support of their cross motion, defendants submit, among other things, the affidavits of non-parties Marc Jacobowitz and Joseph Gutwirth. Mr. Jacobowitz states that there are only two members of Bluejay, himself and his wife Hadassa Jacobowitz, and that no one other than the Secretary of State of New York has ever been authorized to accept service on behalf of Bluejay. He avers that he never received the summons in the Prior Action, and references the New York State Department Division of Corporations page for Bluejay, which shows that only the Secretary of State of New York is authorized to accept service on Bluejay’s behalf. Mr. Gutwirth states that he is Bluejay’s comptroller, and that only he and Mr. Jacobowitz were present at Bluejay’s office on the date of the alleged service. He avers that he was not served with process in the Prior Action. He attests that he had been in contact with plaintiff for several months prior to the alleged service but was never informed the Prior Action had been commenced until after the Judgment had been entered. Thus, having failed to serve Mr. Jacobson, Mr. Jacobowitz, Mrs. Jacobowitz or the Secretary of State of the State of New York, plaintiff failed to acquire personal jurisdiction over Bluejay in the Prior Action. Plaintiff contends that the Judgment should nevertheless still be domesticated as technical compliance with the service requirements of the CPLR and Federal Rules of Civil Procedure can be excused. While plaintiff is correct in that CPLR 5305 allows for a foreign country judgment to be recognized even where there is a lack of personal jurisdiction, same only applies to certain limited circumstances, which are inapplicable in this matter. Thus, due to the lack of personal jurisdiction over the defendants in the Prior Action, the Judgment cannot be recognized. Accordingly, the motion is denied, the cross motion is granted, and the action is dismissed. Any request for relief not expressly granted is denied. This constitutes the decision and order of the Court. Dated: December 20, 2023
