Motion for Writ in Tianzhu Coal Company Ltd. Under Yaojie Coal And Electricity Group v. Ma Ju| Trellis.Law

On December 19, 2023 a Motion-Secondary was filed involving a dispute between Tianzhu Coal Company Ltd. Under Yaojie Coal And Electricity Group, and Ma Ju, for Commercial - Other (Article 53) in the District Court of Nassau County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU

TIANZHU COAL COMPANY LTD. UNDER
YAOJIE COAL AND ELECTRICITY GROUP,
Index No.: 620508/2023
Plaintiff,
-against- Judge Rhonda E. Fischer,
IAS Part 46
MA JU,
Defendant. March 27, 2024

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT

TOPTANI LAW PLLC
375 Pearl Street, Suite 1410
New York, New York 10038
Telephone: 212-699-8930
Facsimile: 212-699-8939
Email: edward@toptanilaw.com

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TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES……………………………………………………………………(ii)

PRELIMINARY STATEMENT………………………………………………………………….1

GOVERNING LAW AND LEGAL STANDARDS……………………….………………..……3

ARGUMENT………………………………………………………………………...……………4

I. There are no Grounds for Non-Recognition of the Chinese Judgment
Under CPLR 5304……………………...………………………………………………….4

A. US Courts Have Routinely Determined that China
has Impartial Tribunals Compatible with Due Process of Law…………………...4

B. Defendant had Ample Notice and Opportunity to Defend
in the Chinese Proceedings……………………….………………………………8

C. The Chinese Judgment was not Procured by Fraud……………………..…..……9

D. Enforcement of the Chinse Would Not be Repugnant to Public Policy……....…12

II. The Chinese Court Decisions Submitted to the Court are
Authentic and Admissible………………………………………………………………..13

III. Defendant Should not be Permitted to File
Counterclaims……………………………………………………………………………14

CONCLUSION…………………..………………………….……………………………...……14

(i)

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TABLE OF AUTHORITIES

Cases Page(s)

Alvarez v Prospect Hosp., 68 N.Y.2d 320 (1986)………………………………………………...4

Armadillo Distribution Enters. v. Hai Yun Musical Instruments Mfr. Co.,
2014 U.S. Dist. LEXIS 85015 (M.D. Fla. 2014)………………………………………….7

Boss v. Am. Express Fin. Advisors, Inc., 15 A.D.3d 296 (1st Dept. 2005)……………………….12

Chevron Corp. v. Donziger, 974 F. Supp. 2d 362 (S.D.N.Y. 2014)…………………………..…10

China Tire Holdings Ltd. v. Goodyear Tire & Rubber Co.,
91 F. Supp. 2d 1106 (N.D. Ohio 2000)……………………………………………………8

CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V., 296 A.D.2d 81 (1st Dept. 2002)…………….6

Folex Golf Industries, Inc. v. China Shipbuilding Industry, Corp.,
2013 U.S. Dist. LEXIS 67044, (C.D. Cal. May 9, 2013)…………………………………7

Folex Golf Industries, Inc. v. O-Ta Precision Industries Co.,
Ltd., 603 Fed.Appx. 576 (9th Cir. Mar. 24, 2015)…………………………………...……7

Garcia v Portuondo, 459 F. Supp. 2d 267, 284 (S.D.N.Y. 2006)………………………….……13

Hudson Val. Bank, N.A. v BanxCorp, 28 Misc 3d 1232(A)
(Sup Ct., Westchester County 2010)………………………………………………….….14

Intercontinental Hotels Corp. v. Golden, 15 N.Y.2d 9 (1964)………………………………..…12

In re Compania Naviera Jonna S.A., 531 F. Supp. 2d 680 (D.S.C. 2007)………………………..8

In re Holden, 271 N.Y. 218 (1936)………………………………………………………………10

John Galliano, S.A. v. Stallion, Inc., 15 N.Y. 3d 75 (2010)……………………………………....3

Matter of Perez, 40 Misc. 3d 1239[A] (Sur. Ct., Nassau County 2013)………………………....13

Peters v. UBS Trustees (Bahamas) Ltd., 2018 N.Y. Misc. LEXIS 3067*
2018 NY Slip Op 31644(U) (Sup. Ct., N.Y. County 2018)………………………...……13

(ii)

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Cases Page(s)

Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007)………………………8

Soc’y of Lloyd’s v. Ashenden, 233 F.3d 473 (7th Cir. 2000)………………………………...……5

Soc’y of Lloyd’s v. Grace, 278 A.D.2d 169 (1st Dept. 2000)………………………………….….9

Sea Trade Mar. Corp. v Coutsodontis, 111 A.D.3d 483 (1st Dept. 2013)……………………....13

Thorpe v. McCaffrey, 157 A.D.2d 879 (3rd Dept. 1990)…………………………………………12

United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993)……………………………9

VTB Bank (PJSC) v. Mavlyanov, 2018 N.Y. Misc. LEXIS 323*,
2018 NY Slip Op 30166[U] (Sup. Ct, NY County 2018)…………………………………9

Zuckerman v New York, 49 N.Y.2d 557 (1980)…………………………………………………...4

Statutes

1962 Uniform Foreign Money-Judgments Recognition Act,……………...…………………...…3

2005 Uniform Foreign-Country Money Judgments Recognition Act……...…………..................3

Rules

CPLR § 4542…………………………………………………………………………………….13

CPLR § 4542(b)………………………………………………………….………………………13

CPLR 5303……………………………………………………………………………….…….…1

CPLR 5303(b)……………………………………………………………………………………..4

C.P.L.R.§ 5304………………………………………………….……………………...………2, 4

CPLR §5304(a)(1) ………………………………………..…………………………1, 2, 4, 5, 6, 7

CPLR 5304(b)(1) …………………………………………………………………………1, 2, 4, 8

CPLR 5304(b)(2) …………………………………………………….……………………1, 2.4, 9

CPLR 5304(b)(3)…………………………………………………………...……………1, 2, 4, 12

(iii)

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Other Authorities Page(s)

2021 Sess. Law News of N.Y. Ch. 127………………………………………………..3, 4

William S. Dodge & Wenliang Zhang, Reciprocity in China-U.S. Judgments
Recognition, 53 Vand. J. Transnat’l L. 1541 (2020)………………………………..……7

Restatement (Fourth) of the Foreign Relations Law of the United States
§ 481 cmt. a…………………………………………………………………………..……1

Restatement (Fourth) of the Foreign Relations Law of the United States
§ 481 cmt. c………………………………………………………………………………..5

Restatement (Fourth) of the Foreign Relations Law of the United States
§ 481 cmt. j………………………………………………………………………………..5

Restatement (Fourth) of the Foreign Relations Law of the United States
§ 483 reporters’ Note 2…………………………………………………..……………..6, 7

Restatement (Fourth) of the Foreign Relations Law of the United States
§ 483 reporters’ note 3……………………………………………………...……………..4

Restatement (Fourth) of the Foreign Relations Law of the United States
§ 483 reporters’ note 4………………………………………………...…………………..4

Paul B. Stephan, Unjust Legal Systems and the Enforcement of Foreign
Judgments, RECOGNITION AND ENFORCEMENT OF JUDICIAL
JUDGMENTS 84 (Paul B. Stephan ed., 2014……………………….……………………6

(iv)

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Plaintiff Tainzhu Coal Industry Co., Ltd. under Yaojie Coal and Electric Group, Ltd.

(“Plaintiff”) respectfully submits this reply memorandum of law in further support of its motion

for summary judgment in lieu of complaint.

PRELIMINARY STATEMENT

Defendant Ma Ju (“Defendant”) does not dispute that the Judgment1 is a money judgment

that is "final, conclusive and enforceable where rendered." CPLR § 5303. Nor does he provide

any basis as to why the Termination Agreement he executed should not be enforceable against

him in accordance its clear terms, as the Chinese courts reviewing this matter did. Of course,

this is the same result any U.S. court would reach.

Instead, in attempt to frustrate Plaintiff’s efforts to enforce the Judgment, Defendant

argues that the Court should decline to do so under either subdivision (a)(1) of CPLR 5304(a)(1)

(which focuses on the fairness of foreign judicial system as a whole), or subdivisions (b)(1),

(b)(2) or (b)(3) of CPLR 5304 (each of which focuses on facts pertaining to the specific

judgment at issue).

In support of his position that the Chinese judicial system is incapable of rendering fair

judgments, Defendant submits affirmations from two purported experts who claim that the entire

Chinese judicial system is incapable of rending fair judgments. These affirmations, however,

focus only on specific cases involving targeted individuals, rather than the Chinese judicial

system as whole, and in no way undermine established U.S. case law that the Chinese judicial

system is fundamentally fair and its judgments are enforceable here.

1
Capitalized terms not otherwise defined herein have the same meanings ascribed to them in
Plaintiff’s opening brief. Citations to “Br.” and “Opp.” refer to Plaintiff’s opening brief and
Defendant’s opposition brief, respectively

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Similarly, Defendant failed to present any admissible evidence that there were any

defects or improprieties in the specific Chinese proceedings against him. He was represented by

counsel, presented evidence, testified and exercised his rights of appeal. All of Defendant’s

alleged claims of unfairness are based upon inadmissible hearsay.

Despite Defendant’s conclusory claims in this case that the Judgment against him was

obtained as part of a political persecution campaign, it is undisputed that Defendant has been an

immensely successful international businessman for many years. Indeed, at or around the time

the Judgment was first entered against him, Defendant concedes that he was the co-owner of a

mining company worth millions of dollars, held assets worth more than $20 million dollars in

Dubai, and was an investor in a Chinese media company in the United States.

Remarkably, the his declaration submitted to the U.S. under penalties of perjury in

connection with his 2019 asylum application (which has not been granted), Defendant tells a

different story than the one included in the affirmation he submitted to this Court. For example,

Defendant’s asylum declaration makes no reference to political persecution involving Plaintiff’s

Judgment, the alleged confiscation by the CCP of over $20 million in assets in Dubai or his

alleged torture. Those hearsay allegations, which appear for the first time in Defendant’s

affirmation, have obviously been manufactured for this proceeding. For this reason, too,

Defendant’s self-serving, conclusory affirmation should not be considered by the Court and

cannot raise triable issue of fact regarding the Judgment.

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GOVERNING LAW AND LEGAL STANDARDS

In the United States, the principles governing the enforcement of foreign judgments

typically fall under state jurisdiction. This general framework is set forth in the Restatement

(Fourth) of the Foreign Relations Law of the United States §481 cmt. a (Am. Law Inst. 2018).2

Chapter 53 of the CPLR applies to foreign-country judgments that grant or deny recovery

of a sum of money and that are final, conclusive, and enforceable under the laws of the countries

where they were rendered. CPLR §5302. Foreign money judgments that meet those three

requirements are "to be recognized in New York . . . unless a ground for nonrecognition under

C.P.L.R. 5304 is applicable." John Galliano, S.A. v. Stallion, Inc., 15 N.Y.3d 75, 80 (2010).

The grounds for non-recognition are set forth in CPLR 5304, and are divided into two categories:

mandatory grounds, under subdivision (a), of which there are three, and case-specific

discretionary grounds, under subdivision (b), of which there are nine.

In this matter, only one of the mandatory grounds has been raised by Defendant: namely,

CPLR 5304(a)(1), that "the judgment was rendered under a judicial system that does not provide

impartial tribunals or procedures compatible with the requirements of due process of law

Defendant also raises the first three of the case-specific discretionary grounds, i.e., CPLR

5304(b)(1), (b)(2) and (b)(3). First, Defendant argues that he did not receive sufficient notice to

2
Thirty states, including the District of Columbia, have embraced the 2005 Uniform Foreign-
Country Money Judgments Recognition Act. Furthermore, in ten additional states, the
antecedent of this act, the 1962 Uniform Foreign Money-Judgments Recognition Act, remains in
effect (collectively referred to as the “Uniform Act”). As of June 11, 2021, New York has
replaced 1962 Uniform Act with the 2005 Uniform Act. (See 2021 Sess. Law News of N.Y. Ch.
127 (S. 523-A)).

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defend the action. Second, Defendant argues the Judgment was procured by fraud. Third,

Defendant argues that the Judgment is repugnant to public policy. Whereas the three case

specific grounds raised under CPLR 5304(b) by Defendant focus on defects of the specific

judgment or proceeding at issue, the systemic ground raised in CPLR 5304 (a)(1) condemns the

foreign judicial system as one that can never produce a judgment entitled to recognition.3

In June 2021, CPLR 5304 was amended to include subdivision (c), which provides that

“[a] party resisting the recognition of a foreign country judgment has the burden of establishing

the ground for non-recognition in subdivision (a) or (b) of this section exists.” CPLR § 5304(c).4

CPLR 5303(b) also allows a plaintiff to proceed by summary judgment in lieu of

complaint. And, like here, “where the moving party has demonstrated its entitlement to

summary judgment, the party opposing the motion must demonstrate by admissible evidence the

existence of a factual issue requiring a trial of the action…” Zuckerman v New York, 49 N.Y.2d

557 (1980). General allegations, merely conclusory and unsupported by competent evidence, are

insufficient to defeat a motion for summary judgment. Alvarez v Prospect Hosp., 68 NY2d 320,

324 (1986).

ARGUMENT

I. There are no Grounds for Non-Recognition of the Chinese Judgment Under CPLR
5304.

A. US Courts Have Routinely Determined that China has Impartial Tribunals
Compatible with Due Process of Law

3
See Restatement (Fourth) § 483 reporters’ notes 3&4 (describing systemic ground and
distinguishing it from case-specific grounds).

4
See 2021 N.Y. Sess. Laws Ch. 127 (S. 523-A) § 10.

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Defendant argues that the Judgment was “rendered under a judicial system that does not

provide impartial tribunals or procedures compatible with the requirements of due process of

law.”5 Defendant, however, has failed to cite a single case to support his argument that China’s

court’s lack basic fairness. Similarly, he has failed to point the Court to any authority where a

U.S. court has refused to enforce a Chinese judgment, let alone refused to enforce a Chinese

judgment on the ground that Chinese courts are impartial.

Instead, in an attempt to find systemic lack of due process in the Chinese judicial system,

Defendant relies entirely upon affirmations from four individuals: Andrew Nathan, Teng Biao,

Daniel Yu and Peter Dahlian (collectively, the “Affirmants”). The Affirmants’ affirmations,

without more, are insufficient to raise genuine questions of fact as to whether the Chinese

judicial system, as a whole, is incapable of providing impartial tribunals and rendering fair

judgments. In fact, only the affirmations submitted by Messrs. Baio and Yu opine that the

judicial system in the PRC is fundamentally unfair and unable to provide impartial tribunals.

An incisive reading of those two affirmations, however, reveals that the opinions are

actually confined to situations involving certain individuals in China, e.g., in cases where the

CCP has an interest in targeting troublemakers or dissidents, rather than to the Chinese judicial

system as a whole. And (as discussed in further below), none of the Affirmants discuss the fact

that no Court in the United States that has addressed the fairness of the Chinese judiciary has

5
As discussed in Plaintiff’s opening brief, the law does not require compliance with U.S
requirements for due process, but rather general principals of due process. (Br. 9.) U.S. courts
have interpreted “due process” to require “that the foreign procedures are ‘fundamentally fair.’”
Soc’y of Lloyd’s v. Ashenden, 233 F.3d 473, 477 (7th Cir. 2000) (citation omitted); see also
Restatement (Fourth) § 483 cmt. c (referring to “principles of fundamental fairness); id. § 484
cmt. j (same); S.B. v. W.A., 959 N.Y.S.2d 802, 820 (N.Y. Sup. Ct. 2012) (recognizing that CPLR
5304(a)(1) did not require exact conformity with New York due process).

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ever made a determination that a Chinese judgment should not be recognized because it was

rendered under a judicial system that does not provide impartial tribunals or procedures

compatible with the requirements of due process.

In addition, none of the Affirmants appears to have ever met Defendant nor do any

possess personal knowledge about the specific facts surrounding the Judgment obtained against

Defendant; nor have they reviewed the Chinese case file or provided a commentary on the legal

reasoning provided by the Chinese courts. They have not even reviewed Defendant’s asylum

application. As such, the Affirmants’ opinions about the credibility of Defendant’s allegations in

this action (most of which are hearsay) are of no probative value for purposes of this summary

judgment motion.

Significantly, if Defendant’s argument about the Chinese judiciary is correct, which he is

not, the immediate consequence would be to render all Chinese judgments unenforceable in the

State of New York, regardless of whether the losing party participated in the litigation, was

represented by counsel and was able to appeal because subdivision (a)(1) is directed at the entire

judicial system, and is not confined to the underlying action.

U.S. courts have been “exceedingly reluctant to condemn an entire foreign judiciary.”

Restatement (Fourth) §483 reporters’ note 2; see also Paul B. Stephan, Unjust Legal Systems and

the Enforcement of Foreign Judgments, in RECOGNITION AND ENFORCEMENT OF

JUDICIAL JUDGMENTS 84, 94 (Paul Stephan ed., 2014) (noting that U.S. courts “have refused

to become tribunals that weigh the quality of foreign judiciaries in the abstract”); CIBC Mellon

Trust Co. v. Mora Hotel Corp. N.V., 296 A.D.2d 81, 88-89 (1st Dept. 2002)(“there are few cases

in which recognition . . . is denied for lack of due process under CPLR 5304(a)(1)”).

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In summarizing U.S. cases addressing systemic lack of due process, the Restatement

(Fourth) concluded that “[a]bsent a total breakdown in civil order or other events tantamount to

civil war, courts in the United States have not rejected foreign judgments simply because of the

nature of the legal system in which they originate.” Restatement (Fourth) §483 reporters’ note 2.

Significantly, no U.S. court has ever made a determination that the Chinese judicial

system does not provide impartial tribunals or procedures compatible with due process. See

William S. Dodge & Wenliang Zhang, Reciprocity in China-U.S. Judgments Recognition, 53

Vand. J. Transnat’l L. 1541,1564 (2020)(noting that “courts in the United States have

consistently rejected such arguments”). “Indeed, U.S. courts consistently acknowledge the

adequacy of due process in the [Chinese] judicial system." Folex Golf Industries, Inc. v. China

Shipbuilding Industry, Corp., 2013 U.S. Dist.LEXIS 67044, at *11 (C.D. Cal. May 9, 2013)

(concluding that the Chinese judgment was entitled to recognition because defendant received

fair notice and had fair opportunity to defend itself, and due to long-standing principles of

international comity), reversed on other grounds by Folex Golf Industries, Inc. v. O-Ta Precision

Industries Co., Ltd., 603 Fed.Appx.576 (9th Cir. Mar. 24, 2015); see also Dodge & Zhang,

supra, at 1561-70 (discussing U.S. decisions).6

In addition, Courts have also correctly noted that forum non conveniens precedent is

useful for applying judgment domestication statutes as well, because the analysis is comparable.

See Armadillo Distribution Enters. v. Hai Yun Musical Instruments Mfr.Co., 2014 U.S.Dist.

LEXIS 85015, at *15 (M.D.Fla. 2014)(noting that cases regarding “the sufficiency of the

6
Defendant’s argument that other U.S. cases enforcing Chinese judgments have no
preclusive effect on Defendant completely misses the mark. (Opp. 11-12.) This is because
CPLR 5304(a)(1) is not case specific. Mandatory non-recognition under this subdivision
addresses the entire Chinese judicial system and is applicable to all Chinese judgments.

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Chinese court system under a forum non conveniens standard rather than a domestication

standard . . . provide insightful verification of instances where the Chinese judicial system has

been discussed, evaluated, and determined appropriate by United States federal courts.”); In re

Compania Naviera Jonna S.A., 531 F.Supp. 2d 680 (D.S.C.2007) concluding that China provides

a suitable forum and granting petitioner’s motion to dismiss on forum non conveniens grounds;

China Tire Holdings Ltd. v. Goodyear Tire & Rubber Co., 91 F.Supp. 2d 1106, 1110 (N.D.Ohio

2000) (concluding that China presented an adequate forum.); Sinochem Int’l Co. v. Malaysia

Int’l Shipping Corp., 549 U.S. 422, 428 (2007)(affirming the lower court’s conclusion “that the

case could be adjudicated adequately and more conveniently in the Chinese courts.”).

Based on the above, Plaintiff has easily established a prima facie case demonstrating that

the Chinese Judgment was not by a judicial system incapable of rendering a fair decision, as this

has already been well-settled by U.S. Courts addressing this issue, and Defendant has failed to

raise any genuine material of fact based upon admissible evidence that would warrant a full trial

to reexamine all years of established precedent.

B. Defendant Had Ample Notice and Opportunity to Defend

The first of three case-specific discretionary grounds on which Defendant claims this

Court should not recognize the Judgment is that “did not receive notice of the proceeding in

sufficient time to enable the defendant to defend.” CPLR §5304(b)(1). (Opp. 13-14.)

Defendant fails to disclose to the Court that he participated in multiple Chinese court

proceedings that eventually resulted in the Judgment against him. For example, as a preliminary

matter, Defendant objected the Intermediate Court’s jurisdiction, which was denied. In turn,

Defendant unsuccessfully appealed that ruling to the High Court, which eventually resulted in a

trial on the merits of Plaintiff’s claim in the Intermediate Court. Defendant then also

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unsuccessfully appealed the Intermediate Court’s Judgment to the High Court. Throughout all of

this, Defendant appeared with counsel, attended hearings, presented evidence, testified and

appealed. Defendant not only had sufficient time to defend himself, but he actually did so in a

robust manner.

It is well-established that “the basic requisites of due process” are satisfied so long as

“the record indicates [defendants] were afforded notice and an opportunity to be heard in the

underlying [proceeding].” Soc’y of Lloyd’s v. Grace, 278 A.D.2d 169, 169 (1st Dept. 2000)

(citing United States v. James Daniel Good Real Prop., 510 U.S. 43, 48-49 (1993)); VTB Bank

(PJSC) v. Mavlyanov, 2018 N.Y. Misc. LEXIS 323, at *10 (N.Y. Sup. Ct. 2018)(court granting

summary judgment in lieu of complaint on Russian judgment where defendant received notice of

the proceedings, appeared with counsel, attended hearings, filed counterclaims, and sought an

appeal).

C. The Chinese Judgment was not Procured by Fraud

The second of three case-specific discretionary grounds on which Defendant claims this

Court should not recognize the Judgment is that “the PRC Judgments were procured by fraud

and corruption as a form of political retaliation.” CPLR §5304(b)(2) (Opp. 13.). This argument

should be rejected because Defendant’s affirmation is replete with conclusory, unsupported and

self-serving and inadmissible hearsay statements that fail to raise triable issues of fact regarding

the manner in which the Chinese judgment was obtained. It is also not consistent with

Defendant’s asylum declaration. Furthermore, Defendant’s attempt to bolster his affirmation

with the Affirmants’ affirmations is improper. None of the Affirmants possesses any personal

knowledge about the Chinese proceedings, and each of their opinions about the Defendant’s case

and credibility is based solely on a review of Defendant’s dubious affirmation.

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CPLR 5304(b)(2) permits a court to deny recognition of a foreign country judgment

where “the judgment was obtained by fraud that deprived the losing party of an adequate

opportunity to present his case.” The alleged fraud must be “practiced in the very act of

obtaining the judgment.” In re Holden, 271 N.Y. 218 (1936). 7

Defendant’s allegation of fraud in Plaintiff’s obtaining its judgment against him is not

supported by any admissible evidence. For example, Defendant alleges that Plaintiff’s attorney

stated that “there was no real basis” to sue him. (Ma Aff., ¶55.) Defendant also contends that a

friend of his met with an “assessor” who told him that “the court had been ordered by higher-

level officials to rule against me…” (Id., 58). Similarly, Defendant states that Judge Cui, an

appellate court judge on his appeal, stated that the lower court’s “judgment made no sense, that it

was a non-sensical ruling, and that it was sure to be reversed.” (Id., ¶63; see also ¶¶65,67).

Defendant also claims that his lawyers “told me that they were no longer able to pursue the

appeal because the authorities had told the law firm that if they continued with my case, the

firm’s license to operate would be revoked.” (Id., ¶70.) At bottom, the foregoing, self-serving

hearsay statements are insufficient to adequately allege fraud for purposes of defeating Plaintiff’s

summary judgment motion and must be rejected.8

7
Defendant cites to Chevron Corp. v. Donziger, 974 F Supp.2d 362, 385 (S.D.N.Y.2014) for
the proposition that a CPLR 5304(b)(2) also applies to judgments “procured by corrupt means.”
In that case, the Court was referring to corrupt means such as the submission of false evidence
and payment of bribes to the judge and jury. There is no admissible evidence that any such
improprieties occurred in Defendant’s case

8
For the avoidance of doubt, Plaintiff also objects to the multiple other instances where
Defendant has relied upon hearsay statements to support allegations that Plaintiff’s civil
proceeding against him to enforce the Termination Agreement was part of an elaborate plot by
the CCP. Tellingly, Defendant made no reference to Plaintiff’s lawsuit in the declaration he
included in his asylum application, nor did he reference the $20 million dollars that he claims
were “effectively confiscated by the Party-state” from him. Similarly, Defendant’s asylum

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Moreover, Defendant does not contend that the any false evidence was submitted against

him, nor does he suggest that, as a 20% co-owner of the coal company, he was not an integral

party and willing participate in the commercial various transactions that ultimately were the

subject of the Chinese proceedings. Among other things, Defendant concedes, as he must, that

as a sophisticated international businessman he executed the Termination Agreement on June 7,

2012, which is the contract that was litigated in the Chinese courts and resulted in the Judgment

against him. Defendant falsely states to this Court that his obligation under the Termination

Agreement to effectuate the payment of 80 million RMB to Plaintiff was subject to sale of the

coal company he was part owner to a new buyer (and, in turn, the proceeds from such sale would

be paid to Plaintiff to satisfy such amount.)(Ma Aff., ¶¶ 42-43.) However, contrary to

Defendant’s contention, that is not what the Termination Agreement he executed provides. In

fact, this exact argument was raised by Defendant in the Chinese court and rejected. (See also

Reply Affirmation of Li Yan, ¶¶ 6-7.) This is the same conclusion that a U.S. court would have

reached in enforcing the clear and unambiguous terms of the Termination Agreement (and the

fact that Defendant was not paid anything or increased his equity in the coal company, as he

alleges, is irrelevant).

Finally, Defendant does not even attempt to explain why the reasoning in the Chinese

court decisions, which address a purely contractual issue, was incorrect -- let alone how it is the

those decisions were tainted by fraud. He simply states in conclusory terms that it makes no

sense. Defendant’s averments of fraud in the Chinese proceedings are “nothing more than an

declaration fails to mention that Defendant was tortured, as Defendant now alleges in this case.
(See Ma Aff., ¶¶23, 88-89; Ex.C, Part B.1.A, Declaration of Ma Ju.) Plaintiff urges the Court to
compares Defendant’s affirmation to his asylum declaration and suggests that the only plausible
conclusion one can reach is that Defendant has fabricated multiple allegations in this action in an
effort defeat summary judgment.

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attempt to reopen the merits of the action.” Thorpe v. McCaffrey, 157 A.D.2d 879, 882 (3rd

Dept. 1990).

D. Enforcement of the Judgment Would Not be Repugnant to Public Policy

The third case-specific discretionary ground on which Defendant claims this Court

should not recognize the Judgment is that the Judgment should not be enforced because to do so

would be “repugnant to the policy of this state or of the United States.” CPLR §5304(b)(3) (Opp.

14.)

Defendant cites no authority to support this conclusory argument and fails to identify any

specific public policy that would be violated. Rather, Defendant relies solely upon his

affirmation and the Affirmants’ affirmations. As discussed above, the alleged grievances raised

by Defendant about the Chinese proceedings are based upon inadmissible hearsay and the

Affirmants have absolutely no personal knowledge about the Chinese proceedings. As such, and

as addressed above, there are no material issues of fact regarding the fairness of the Chinese

judicial system, as a whole, or whether the Judgment obtained against Defendant in his specific

case was procured by fraud.

It is well-established that "foreign-based rights should be enforced unless the judicial

enforcement of such a contract would be the approval of a transaction which is inherently

vicious, wicked or immoral, and shocking to the prevailing moral sense." Intercontinental Hotels

Corp. v. Golden, 15 N.Y.2d 9, 13 (1964)(permitting enforcement of Puerto Rican judgment

based upon gambling debt even though enforcement of gambling debts in New York were

illegal). "[A] mere difference between the foreign rule and our own does not warrant a refusal to

apply the foreign law." Boss v. Am. Express Fin. Advisors, Inc., 15 A.D.3d 296, 308 (1st Dept.

2005).

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Here, the nature of the underlying claim is a breach of contract. There is nothing vicious

or immoral about the enforcement an award of damages on a breach of contract in such a dispute.

Sea Trade Mar.Corp. v Coutsodontis, 111 A.D.3d 483 (1st Dept.2013)(Damages award entered

by a Spanish court against an arrestor who improperly commenced a proceeding to arrest the

owner’s ship in Spain could be enforced in New York since the claim upon which the damages

award was based was not repugnant to New York public policy).

II. The Chinese Court Decisions Submitted to the Court are Authentic and Admissible

Defendant argues that Plaintiff’s summary judgment motion should be denied because

the accompanying Chinese court decisions were not properly authenticated under CPLR 4542(b).

(Opp. 14.) Defendant is incorrect. Each of the decisions include an attestation from an

authorized notary that the submission is in conformity with the original. (See Hallet Aff., Exs.1-

3.) There is no evidence that the notary did not possess the authority to do so. In turn, Jing Ling

Liu, an officer of the Chinese Ministry of Foreign Affairs, affixed his signature to the attested

documents, thereby further confirming their authenticity, and presented them to the U.S.

Embassy for final certification. This is sufficient for purposes of of CPLR 4542(b).

Regardless, strict compliance with certification requirements may be excused in proper

circumstances though, "if reasonable opportunity has been given to all parties to investigate the

authenticity and accuracy of the documents." Peters v. UBS Trustees (Bahamas)Ltd., 2018 N.Y.

Misc. LEXIS 3067, at *9 (Sup. Ct., N.Y. County 2018); CPLR §4542 (b); Garcia v Portuondo,

459 F. Supp.2d 267, 284 (S.D.N.Y. 2006)("Section 4542's requirements are not mandatory");

Matter of Perez, 40 Misc. 3d 1239[A] (Sur. Ct., Nassau County. 2013) ("The statutory scheme is

designed to foster simplification and flexibility in the admission of foreign records and

documents.")

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Here, Defendant, who was a party to the Chinese proceedings and is obviously familiar

with the court decisions, had a prolonged opportunity (i.e., nearly two months) to investigate

their authenticity, and no reasonable questions or concerns have been raised about them by him.

Accordingly, the Court should deem them admissible. Plaintiff is also prepared to satisfy any

requests the Court may have with regard to this issue.

III. Defendant Should not be Permitted to File Counterclaims

Defendants request to file counterclaims should be denied.

This request was improperly included in Defendants’ opposition papers, rather than by

motion. Further, the Court’s rules require that all motions obtain prior permission from the

Court. Thus, Defendant’s request is procedurally incorrect.

In addition, Plaintiff has not filed any claims against Defendant in this action. It is only

seeking the Court’s recognition of the Judgment pursuant to a motion for summary judgment.

According, there is no complaint that is required to be answered. Therefore, Defendant is not

permitted to file an answer and cannot interpose counterclaims. See Hudson Val. Bank, N.A. v

BanxCorp, 28 Misc.3d 1232(A) (Sup Ct., Westchester County 2010).

CONCLUSION

For the reasons set forth above and in Plaintiff’s opening papers, Plaintiff’s motion for

summary judgment in lieu. of a complaint should be granted and Defendant’s request to

interpose counterclaims should be denied.

Dated: March 27, 2024 Respectfully submitted,

/s/Edward Toptani
Edward Toptani

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TOPTANI LAW PLLC
375 Pearl Street, Suite 1410
New York, New York 10038
Telephone: 212-699-8930
Facsimile: 212-699-8939
Email: edward@toptanilaw.com

Counsel for Plaintiff Tainzhu Coal Industry
Co., Ltd. under Yaojie Coal and Electric
Group, Ltd.

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CERTIFICATION

I certify that this document was prepared on a computer using Microsoft Word in 12-
point, Times New Roman font; that the word count of this document, as calculated in accordance
with Rule 202.8-b of the Uniform Rules for the Supreme Court and County Court by the
computer processing system used to prepare this document, is 4199 words; and that this
document complies with the word-count limit in such Rule and the CourtÕs individual rules.

/s/ Edward Toptani
Edward Toptani

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March 27, 2024

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December 19, 2023

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Motion-Secondary: Tianzhu Coal Company Ltd. Under Yaojie Coal And Electricity Group v. Ma Ju

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