SUNG HWAN CO LTD v. RITE AID CORPORATION (2004)

Judgment, Supreme Court, New York County (Richard B. Lowe III, J.), entered June 12, 2003, which dismissed the complaint, unanimously affirmed, without costs.

The IAS court misinterpreted our decision in CIBC Mellon Trust Co. v. Mora Hotel Corp., 296 A.D.2d 81, 743 N.Y.S.2d 408 [2002], affd. 100 N.Y.2d 215, 762 N.Y.S.2d 5, 792 N.E.2d 155 [2003], cert. denied 540 U.S. 948, 124 S.Ct. 399, 157 L.Ed.2d 279 [2003], in concluding that it was restricted to a review of the material before the Korean court in determining whether New York law would permit the exercise of jurisdiction over defendant, particularly since plaintiff had no opportunity to lay bare its proof as to jurisdiction because of defendant's default in the underlying Korean action.   Evidence outside the foreign court's file could be examined in order to determine whether that court had a basis for personal jurisdiction over defendant (see Porisini v. Petricca, 90 A.D.2d 949, 456 N.Y.S.2d 888 [1982] ).

We affirm nonetheless, because the evidentiary material before the IAS court, including the Korean court file and a 1995 ice cream sales agreement between defendant's subsidiary and a Korean distributor, conclusively refuted any allegation that the Seoul District Court had a cognizable basis for exercise of personal jurisdiction over defendant.   Dismissal of the complaint was warranted under CPLR 3211(a)(1) and 5304(a)(2).