HARVARDSKY PRUMYSLOVY HOLDING LIKVIDACI v. KOZENY (2018)

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about February 3, 2017, which denied the motion of defendant Viktor Kozeny to dismiss the amended complaint pursuant to CPLR 3211(a)(1), (7), and (8), unanimously affirmed, with costs.

Assuming, arguendo, that Kozeny has raised a nonfrivolous ground for denying recognition of the Czech judgment that plaintiff seeks to enforce, “there must be either an in personam or an in rem jurisdictional basis for maintaining the recognition and enforcement proceeding ․ in New York” (AlbaniaBEG Ambient Sh.p.k. v. Enel S.p.A., 160 A.D.3d 93, 94, 73 N.Y.S.3d 1 [1st Dept. 2018] ).  However, Kozeny waived the defense of lack of personal jurisdiction because he is the alter ego of defendant Landlocked Shipping Co. (see Harvardsky Prumyslovy Holding, AS.—V Likvidaci v. Kozeny, 117 A.D.3d 77, 83, 983 N.Y.S.2d 240 [1st Dept. 2014] ), and Landlocked previously moved to dismiss pursuant to CPLR 3211(a)(1) and (7), not subdivision (8) (see CPLR 3211[e];  see also New Media Holding Co. L.L.C. v. Kagalovsky, 118 A.D.3d 68, 77, 985 N.Y.S.2d 216 [1st Dept. 2014] ).

Even if Kozeny did not waive the defense of lack of personal jurisdiction, New York has in rem jurisdiction.  Plaintiff alleges that Landlocked has approximately $22 million at a bank in New York, and Kozeny did not submit documentary evidence utterly refuting this allegation.  Furthermore, plaintiff seeks to enforce its Czech judgment against this $22 million (see e.g. AlbaniaBEG, 160 A.D.3d at 104 n. 11 & 12, 73 N.Y.S.3d 1;  see also Deutsche Bank, AG v. Vik, 142 A.D.3d 829, 829–830, 40 N.Y.S.3d 23 [1st Dept. 2016] ).

The court properly denied the branch of Kozeny's motion that was based on CPLR 3211(a)(7).  Kozeny contends that the Czech judgment “was rendered under a system which does not provide ․ procedures compatible with ․ due process” (CPLR 5304[a][1] ) because the Czech court never had custody of him and he was tried in absentia.  However, because the statute refers to a system which does not provide procedures compatible with due process, “it cannot be relied upon to challenge the legal processes employed in a particular litigation on due process grounds” (CIBC Mellon Trust Co. v. Mora Hotel Corp., 296 A.D.2d 81, 89, 743 N.Y.S.2d 408 [1st Dept. 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];  see also Downs v. Yuen, 298 A.D.2d 177, 178, 748 N.Y.S.2d 131 [1st Dept. 2002] ).  The Czech legal system provides procedures compatible with due process (see Leser v. Berridge, 668 F.3d 1202, 1208 n. 2 [10th Cir. 2011] ).

Having had notice and an opportunity to be heard, Kozeny was “afforded due process, even if the [foreign] procedures were not as generous as those of New York” (Standard Chartered Bank v. Ahmad Hamad Al Gosaibi & Bros. Co., 110 A.D.3d 578, 578, 973 N.Y.S.2d 197 [1st Dept. 2013] ).  Plaintiff was not required to allege that the Czech court took Kozeny into its physical custody.  It is sufficient if a plaintiff alleges that the foreign “judgment was ‘conclusive’ ” (id. at 579, 973 N.Y.S.2d 197), which plaintiff did.