Tianzhu Coal Company, Ltd., etc., respondent, v. Ma Ju, appellant. (2026)

Argued—January 20, 2026

DECISION & ORDER

Q/

In an action to enforce a foreign money judgment, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Rhonda E. Fischer, J.), entered August 13, 2024, and (2) a judgment of the same court dated August 20, 2024.  The order granted the plaintiff's motion for summary judgment in lieu of complaint.  The judgment, upon the order, is in favor of the plaintiff and against the defendant in the total sum of $12,498,157.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248).  The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1];  Matter of Aho, 39 N.Y.2d at 248).

In January 2016, the plaintiff, a foreign entity with a principal place of business in China, commenced an action against, among others, the defendant in the Gansu Province Lanzhou City Intermediate People's Court in China (hereinafter the intermediate court) to recover damages for breach of contract.  In January 2017, the intermediate court ruled that the defendant was to return to the plaintiff renminbi (hereinafter RMB) 80 million plus RMB 6,742,800 for an unpaid loan, interest in the amount of RMB 4,223,800, and other costs (hereinafter the foreign judgment).  Both the plaintiff and the defendant appealed the intermediate court's ruling to the High People's Court of Gansu (hereinafter the high court).  The high court affirmed the foreign judgment.

The defendant was represented by counsel before the intermediate court and the high court.  Counsel examined the evidence submitted and made arguments on the defendant's behalf.

In May 2018, the intermediate court issued an enforcement ruling against the defendant due to his failure to satisfy the foreign judgment.  Allegedly, the plaintiff was able to recover only RMB 2,387,211, leaving RMB 89,268,623 as the unpaid balance.  Based upon the exchange rate, that balance amounted to $12,497,607.

The defendant has been living in New York since 2019.  In December 2023, the plaintiff commenced the instant action against him in the Supreme Court, Nassau County, to enforce the foreign judgment, by motion for summary judgment in lieu of complaint pursuant to CPLR 3213.  The defendant opposed the motion, contending, inter alia, that grounds for nonrecognition of the foreign judgment existed under CPLR 5304(a)(1) and (b)(1)-(3).  In an order entered August 13, 2024, the court granted the plaintiff's motion.  A judgment dated August 20, 2024, was then issued in favor of the plaintiff and against the defendant in the total sum of $12,498,157.  The defendant appeals.

“ ‘Under CPLR article 53, a judgment issued by the court of a foreign country is recognized and enforceable in New York State if it is final, conclusive and enforceable where rendered’ ” (Huizhi Liu v. Guoqing Guan, 225 AD3d 749, 750, quoting Gemstar Can., Inc. v. George A. Fuller Co., Inc., 127 AD3d 689, 689).  “A foreign country judgment [generally] is considered conclusive between the parties to the extent that it grants or denies recovery of a sum of money” (id. at 751 [alteration and internal quotation marks omitted];  see CPLR 5303[a];  CIBC Mellon Trust Co. v. Mora Hotel Corp., 100 N.Y.2d 215, 221).  “However, a foreign country judgment is not conclusive, and thus may not be recognized, if ․ it was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law” (Huizhi Liu v. Guoqing Guan, 225 AD3d at 751 [internal quotation marks omitted];  see CPLR 5304[a][1] ).  Recognition of a foreign country's judgment may be sought by “a motion for summary judgment in lieu of complaint seeking recognition of the foreign country judgment” (CPLR 5303[b] ).

The 2021 amendments to CPLR article 53 provided, among other things, that “[a] party resisting recognition of a foreign country judgment has the burden of establishing that a ground for non-recognition stated in subdivision (a) or (b) of [CPLR 5304] exists” (id. § 5304[c];  see L 2021, ch 127, § 5 [eff June 11, 2021] ).  The 2021 “amendments apply to cases commenced on or after the effective date thereof” (Huizhi Liu v. Guoqing Guan, 225 AD3d at 751) and, therefore, apply here, as this action was commenced in December 2023 by a motion for summary judgment in lieu of complaint.  The 2021 amendments to CPLR article 53 do not, however, alter the burden required of a party opposing a motion for summary judgment (see L 2021, ch 127, § 5).  Accordingly, where the plaintiff has established its prima facie entitlement to summary judgment, which, here, the defendant does not dispute, the “defendant can defeat a CPLR 3213 motion by offering evidentiary proof sufficient to raise a triable issue of fact” (Banco Popular N. Am. v. Victory Taxi Mgt., 1 NY3d 381, 383;  see Whitestone Plaza, LLC v. You Lin Shen, 231 AD3d 1001, 1002).  Here, the defendant contends that his submissions in opposition raised triable issues of fact as to the existence of grounds for nonrecognition of the foreign judgment under CPLR 5304(a)(1), (b)(7), and (b)(8).

“CPLR 5304(a)(1) does not demand that the foreign tribunal's procedures exactly match those of New York. Rather, the statute is satisfied if the foreign court's procedures are compatible with the requirements of due process of law” (CIBC Mellon Trust Co. v. Mora Hotel Corp., 100 N.Y.2d at 222 [internal quotation marks omitted] ).  Here, the Supreme Court correctly found that the affirmations of four experts on China's political and judicial system that the defendant submitted in opposition were insufficient to raise triable issues of fact.  These affirmations were too conclusory and speculative to be of probative value, as they lacked sufficient facts and dates to support the opinions expressed therein regarding the Chinese judicial system's overall fairness (see Romano v. Stanley, 90 N.Y.2d 444, 451;  Snyder v. AFCO Avports Mgt., LLC, 232 AD3d 209, 219).  Similarly, the defendant's affirmation failed to raise triable issues of fact with respect to the Chinese judicial system's overall fairness (see Banco Popular N. Am. v. Victory Taxi Mgt., 1 NY3d at 383;  Whitestone Plaza, LLC v. You Lin Shen, 231 AD3d at 1002).

The defendant's contentions that triable issues of fact existed for nonrecognition pursuant to CPLR 5304(b)(7), in that the foreign judgment was rendered under circumstances that raised substantial doubt about the integrity of the rendering courts with respect to the foreign judgment, and CPLR 5304(b)(8), in that the specific proceeding before the intermediate court leading to the foreign judgment was not compatible with the requirements of due process of law, are raised for the first time on appeal.  In general, arguments raised for the first time on appeal should not be considered (see Matter of Regina Metro.  Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 362–363;  Wells Fargo Bank v. Islam, 174 AD3d 670, 671–672).  An exception exists where the newly raised argument “present[s] pure questions of law that appear on the face of the record and could not have been avoided if raised at the proper juncture” (Commissioner of the N.Y. State Dept. of Transp. v Polite, 236 AD3d 82, 98;  see Weidner v. Basser–Kaufman 228, LLC, 212 AD3d 684, 685).  Thus, “a newly raised point of law may be entertained on appeal where it is one which is decisive of the appeal and which could not have been obviated by factual showings or legal countersteps if it had been raised below” (Wells Fargo Bank v. Islam, 174 AD3d at 672 [internal quotation marks omitted];  see Telaro v. Telaro, 25 N.Y.2d 433, 439).  Here, the exception does not apply, since, as the defendant concedes, both of these newly raised contentions raise fact-intensive questions and do not present questions of pure law.  Accordingly, the defendant's contentions concerning CPLR 5304(b)(7) or (8) are not properly before this Court.

The parties' remaining contentions are either without merit or improperly raised for the first time on appeal.

Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213.

BARROS, J.P., VOUTSINAS, GOLIA and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court