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S22 | MONDAY, AUGUST 25, 2014
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Civil Practice
The court observed that under CPLR 3119(e), a party’s failure to comply with disclosure between the prior administrative proceeding

an application to the court for a protective obligations. The nature and degree of disclo- and the subsequent litigation.” Id. at 257-58.
order or to quash a subpoena issued under sure sanctions imposed under this statute
« Continued from page S3
CPLR 3119 “must comply with the rules or are vested in the broad discretion of the trial Default Entered in England
missal on forum non conveniens grounds is statutes of this state and be submitted to the court and the appellate courts have frequent- Recognized
required as a matter of law.” Id. at 138. We can- court in the county in which discovery is to ly cautioned that they will rarely disturb the
not delve into the detailed facts of this case be conducted.” Id. That should provide some exercise of that discretion. See New York Prac- CPLR 5304 describes in some detail the
in this limited space, but will note that the comfort to nonparties in New York, who may tice §367 (Connors ed., July 2014 Supplement). foreign money judgments, i.e., judgments
dispute arose out of a transactional matter. A get caught in the tentacles of an action com- Yet in Merrill Lynch, Pierce, Fenner & Smith obtained outside the United States and its
party to a contract seeking to avoid a forum menced in another state. In Kapon, however, v. Global Strat, 22 N.Y.3d 877, 878 (2013), the territories, that need not be recognized in New

non conveniens dismissal can always insist on the nonparties failed to meet their burden court found a clear abuse of that discretion York. For example, CPLR 5304(a)(2) generally
including a New York choice of law provision. of demonstrating that the deposition testi- and vacated a $99 million default judgment provides that a foreign judgment will not be
General Obligations Law §5-1402(1) provides mony sought was irrelevant to the California because the penalty “was not commensurate enforced in New York “if the foreign court
that if such an agreement creates an obliga- action and the court afirmed the denial of with the alleged disobedience, i.e., failure to did not have personal jurisdiction over the
tion of at least $1 million, and the parties have the motions to quash.
produce documents that [plaintiffs] claimed defendant.” An exception to this broad rule is
stipulated to the exclusive jurisdiction of the were in the [defendant]s’ possession.”
recognized in CPLR 5305(a)(3), which states
New York courts, the forum non conveniens The court emphasized that plaintiffs origi- that a “foreign country judgment shall not be
doctrine is superseded and the New York Employer Shielded by ‘Grave Injury’ nally sought the far lesser penalty of depos- refused recognition for lack of personal juris-
Statute
courts must entertain a dispute under the ing the individual defendants to ascertain diction if . the defendant prior to the com-
contract. See CPLR 327(b); New York Practice The immigration debate has continued for whether they complied with the disclosure mencement of the proceedings had agreed to
§28 (Connors ed., July 2014 Supplement).
over a decade, with little or no action taken demands. In addition, the court found that submit to the jurisdiction of the foreign court
by the legislative or executive branches of the report of the referee to whom the mat- with respect to the subject matter involved.”
Relevance Is Standard for Disclosure
our government. The judicial branch does not ter was referred contained no basis for his In Landauer v. Joe Monani Fish, 22 N.Y.3d
enjoy the option of inertia, and must gener- conclusion that the individual defendants 1129, 1131 (2014), the court applied its prior
There has been a long simmering conlict ally resolve disputes concerning immigration had willfully failed to comply with plaintiffs’ precedent in concluding that recognition of
in the Appellate Division over whether some- that are brought before it. For example, in disclosure demands. The court remitted the a foreign judgment “is not repugnant to our
thing more than mere relevance is required for Balbuena v. IDR Realty, 6 N.Y.3d 338 (2006), matter to supreme court for “the imposition of notion of fairness if defendant was a party to

disclosure from a nonparty. We have tracked the court held that plaintiffs, who were illegal an appropriate sanction, should it determine a contract in which the parties agreed that
this conlict in the Main and Supplementary immigrants, were not precluded from seek- that a sanction is warranted.”
disputes would be resolved in the courts of a
McKinney’s Practice Commentaries to CPLR ing recovery under Labor Law §§240(1) and foreign jurisdiction and defendant was aware
3101, C3101:22 (“The ‘Circumstances’ Rule of 241(6) for injuries, including future lost wages, Collateral Estoppel Not Granted
of the ongoing litigation in that jurisdiction
3101(a)(4)”), available on Westlaw. In Kapon sustained while working at a construction site.
but neglected to appear and defend.” The
v. Koch, 23 N.Y.3d 32 (2014), the Court of More recently, in New York Hosp. Medical Collateral estoppel can be afforded to court in Landauer reiterated that in these
Appeals resolved the dispute by concluding Center of Queens v. Microtech Contracting, indings of fact made in certain quasi-judicial circumstances, “so long as the exercise of
that CPLR 3101(a)(4) “imposes no require- 22 N.Y.3d 501, 504 (2014), the court was asked proceedings, often with dramatic effect. See jurisdiction by the foreign court does not
ment that the subpoenaing party demonstrate “to look at the other side of the coin and New York Practice §456. A helpful discussion offend due process, the judgment should

that it cannot obtain the requested disclosure decide if an employer’s statutory rights under of the subject is contained in Auqui v. Seven be enforced without ‘microscopic analysis’
from any other source.” Id. at 38. Therefore, the Workers’ Compensation Law are extin- Thirty One Ltd. Partnership, 22 N.Y.3d 246, 255 of the underlying proceedings.” Id.
if “the disclosure sought is relevant to the guished merely because its injured employee (2013), where the court held:
These recognition standards were easily
prosecution or defense of an action, it must is an undocumented alien.” In Microtech, plain- Quasi-judicial determinations of adminis- met in Landauer, where the contracts between
be provided by the nonparty.” Id.
tiff hospital hired defendant contractor to trative agencies are entitled to collateral the parties contained a provision giving the
The court held that CPLR 3101(a)(4) perform demolition work in its basement. estoppel effect where the issue a party English courts exclusive jurisdiction over
requires a party serving a subpoena, which The contractor employed two undocumented seeks to preclude in a subsequent civil any disputes arising from the transactions.
is necessary to compel disclosure from a aliens who were injured while conducting the Furthermore, the record established that,
action is identical to a material issue that
nonparty, to “suficiently state the ‘circum- work and, under the precedent established was necessarily decided by the admin- through its counsel, defendant had ample
stances or reasons’ underlying the subpoena in Balbuena, collected on a judgment against istrative tribunal and where there was a notice of the lawsuit before the default
(either on the face of the subpoena itself or the hospital.
full and fair opportunity to litigate before judgment was entered in England. There-
in a notice accompanying it) . .” Id. at 34. If The hospital then sued the contractor for the tribunal.
fore, the Court of Appeals granted plaintiff’s
the nonparty witness or a party’s attorney common law and contractual indemniication CPLR 3213 motion for summary judgment
moves to quash under CPLR 2304, she has the and contribution. It argued that the employ- That test was not satisfied in Auqui, in lieu of complaint to afford recognition to
initial burden of establishing “either that the ment contracts between the employer and the because the defendant failed to establish the English judgment in New York despite
discovery sought is ‘utterly irrelevant’ to the injured employees were illegal under federal that the determination of the Workers’ Com- defendant’s contention that it had not been
action or that the ‘futility of the process to law and, therefore, that the employer could pensation Board that plaintiff had no further properly served in England.

uncover anything legitimate is inevitable or not invoke the protections of Workers’ Com- causally-related disability and no further need It is important to note that while recog-
obvious.’” Id. If the movant meets this burden, pensation Law §11 to defeat the claims for for treatment was suficiently identical to the nition of a foreign country judgment is not
the court in Kapon held that the party serving indemniication and contribution.
issues in plaintiff’s personal injury action.
compelled by full faith and credit, the stan-
the subpoena “must then establish that the The court rejected the hospital’s argument In reaching its conclusion that collateral dard established by the Court of Appeals in
discovery sought is ‘material and necessary’ and granted the employer’s motion to dismiss, estoppel should not be applied, the court in Landauer for recognition of such judgments
to the prosecution or defense of an action, holding that “the employees’ immigration Auqui stressed that in a proceeding under the may limit the defenses that would otherwise
i.e., that it is relevant.” Id.
status does not affect the employer’s rights Workers’ Compensation Law, the focus “is on be available if a party sought to enforce the
Kapon is also the Court of Appeals’ irst under Workers’ Compensation Law [§] 11.” Id. a claimant’s ability to perform the duties of judgment of a sister state. In the latter situ-
encounter with CPLR 3119, the Uniform at 504. In that the hospital did not allege that his or her employment.” Id. at 256. By con- ation, a defendant who has not appeared in

Interstate Depositions and Discovery Act. the employees sustained a “grave injury” or trast, a negligence action seeking recovery the sister state can always raise the defense
This handy statute, adopted in 2011, allows that their claims “for contribution or indem- for personal injuries is concerned with “the of lack of proper service in that state to defeat
a party in an action pending in another niication [were] based upon a provision in larger question of the impact of the injury enforcement of the judgment in New York. See
U.S. jurisdiction to obtain disclosure in a written contract entered into prior to the over the course of plaintiff’s lifetime.” Id. New York Practice §472 (Connors ed., July
New York State without the need for a court accident,” as is required by §11 of the Work- While acknowledging that there is typically 2014 Supplement). Not so if recognition of a
order. See Main and Supplementary McKin- ers’ Compensation Law, its action against the some overlap of the issues determined in the foreign country judgment is sought in New
ney’s Practice Commentaries to CPLR 3119. employer was dismissed. See New York Prac- two proceedings, the court held that they York. In this situation, lack of proper service
In Kapon, respondent sought disclosure in tice §155 (Connors ed., July 2014 Supplement).
are not suficiently identical to visit collateral in the foreign jurisdiction will not necessarily

New York for a California action by invoking estoppel on the plaintiff in his personal injury require that the judgment be denied recog-
CPLR 3119 and serving a subpoena on peti- Rare Abuse of Discretion Finding
action. The court “stress[ed] that [its] hold- nition in New York if: (1) the parties agreed
tioners, who were nonparties to the sister ing should not be read to impair the general to submit the dispute at hand to the foreign
state action. That generated this special pro- It is rare indeed for the New York Court rule that the determinations of administrative tribunal, and (2) defendant was aware of the
ceeding in New York to quash the subpoenas of Appeals to reverse a CPLR 3126 sanctions agencies are entitled to collateral estoppel litigation in the foreign jurisdiction but failed
pursuant to CPLR 2304.
award entered by supreme court based on
effect . where . there is identity of issue
to appear.