Preview
INDEX NO. 157480/2019
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 09/20/2019
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ARTHUR F. ENGORON PART IAS MOTION 37EFM
Justice
X INDEX NO. 157480/2019
BLUE MOUNTAIN CREDIT ALTERNATIVES MASTER
FUND L.P., BLUEMOUNTAIN FOINAVEN MASTER FUND MOTION DATE 08/01/2019
L.P., BLUEMOUNTAIN FURSAN FUND L.P.,
BLUEMOUNTAIN GUADALUPE PEAK FUND L.P., MOTION SEQ. NO. 001
BLUEMOUNTAIN KICKING HORSE FUND L.P.,
BLUEMOUNTAIN LOGAN OPPORTUNITIES MASTER
FUND L.P., BLUEMOUNTAIN MONTENVERS MASTER
FUND SCA SICAV-SIF, BLUEMOUNTAIN SUMMIT
TRADING L.P., GKC STRATEGIC VALUE MASTER FUND,
LP, GKC SV SMAI, LLC,
DECISION + ORDER ON
Plaintiffs,
MOTION
-v-
ISRAEL GREIDINGER,
Defendant.
X
The following e-filed documents, listed by NYSCEF document number (Motion 001)2, 14, 15, 33, 34, 35,
36, 37, 38, 39, 40, 41, 42, 43, 44, 51, 52, 53, 54, 55, 56, 57, 59
were read on this motion for ENFORCEMENT
Upon the foregoing documents, it is the motion to enforce is denied, and the cross-motion to quash
is granted.
Brief Background
Cineworld, a British Corporation, acquired Regal, a Delaware corporation. Petitioners owned
shares in Regal, and pursuant to Delaware law they are entitled to certain appraisal rights, which
they are seeking to enforce in an action they have commenced in Delaware against
Regal. Respondent is an Israeli citizen and a high-ranking principal of Cineworld. Understandably,
petitioners wanted to depose him. To accommodate petitioners’ counsel, he voluntarily appeared in
New York, was deposed, and turned over some 1,300 documents (or pages thereof). Petitioners
believed that he had further information and other relevant documents, and towards or at the close
of the deposition they served him with a subpoena to appear in New York again and to bring other
documents. They now move to enforce the subpoena, and respondent cross-moves to quash. Both
sides have submitted excellent briefs and letters vigorously arguing their respective positions.
Discussion
This Court will assume, without deciding, solely for purposes of this decision, that the subpoena
was procedurally valid and not overly burdensome; that CPLR 3119 can be applied to non-
domiciliaries; and that the Hague Evidence Convention is not the exclusive means to compel
compliance with a subpoena served on a foreign national.
157480/2019 BLUE MOUNTAIN CREDIT vs. GREIDINGER, ISRAEL Page1 of2
Motion No. 001
1 of 2
INDEX NO. 157480/2019
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 09/20/2019
New York’s connection to the Delaware proceeding is short, small and exceedingly tenuous. The
principal of a non-party to the Delaware proceeding voluntarily, to accommodate petitioners,
allowed himself to be deposed in New York, and brought some documents with
him. Period; That’s it; Nothing else. What is not in New York is the underlying proceeding
(Delaware); the parties to that proceeding; respondent’s residence (Israel); respondent’s employer’s
residence (Britain); and the documents sought (Britain). Apparently, all of petitioners’ cases have
some connection to the forum other than a voluntary one-day appearance, as an accommodation, in
aid of a foreign action.
Among petitioners’ many arguments is that respondent only provided documents helpful to
Cineworld. But he was not required to produce anything. Indeed, what he provided seems to have
helped, not hurt, petitioners, in that they now know what other information, particularly documents,
to seek, and they have (other) means to obtain those documents. Petitioners attempt to make much
of the fact that the subpoena issued out of the same proceeding that brought respondent to New
York. While there is some case support (in distinguishable cases) for this argument, this Court
finds it ironic. Arguably, petitioners should be the last people to attempt to rely on respondents’
presence here, because he was accommodating them by being here; whereas a stranger to his
appearance could attempt to rely (albeit probably unsuccessfully) on standard principles of “tag
jurisdiction.” “The doctrine of immunity from service protects non-domiciliaries of New York
from civil process when they voluntarily appear in New York to participate in legal proceedings of
any kind, whether as parties or as mere witnesses. The doctrine, moreover, applies to any action
sought to be commenced against the voluntary participant “whether or not related to the
proceedings for which he is in the state” (see, Siegel, N.Y.Prac. § 68, at 71).” Morea v Regan, 140
AD2d 313, 315 (2d Dept 1988) (citations omitted); see also, Genger v. Genger, 50 Misc 3d 361,
366 (Sup Ct, NY County 2015). To the extent that any courts of coordinate jurisdiction may have
tuled otherwise, this court simply disagrees. To the extent that enforcement of the subpoena might
be discretionary, this Court declines to exercise that discretion.
Final Analysi
The instant dispute belongs in Delaware (whose courts, understandably, have not directed
respondent to appear), the forum of the underlying proceeding; or in Britain, where the documents
are; or in Israel, where respondent lives. It does not belong in New York, where solely to
accommodate petitioners, respondent spent a day.
Conclusion
The petition is denied; the cross-motion is granted; and the subject petition is hereby quashed.
9/19/2019
DATE
ARTHUR F. ENGORON, J.S.C.
CHECK ONE: x CASE DISPOSED NON-FINAL DISPOSITION
GRANTED [x] DENIED
|__| GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT O REFERENCE
157480/2019 BLUE MOUNTAIN CREDIT vs. GREIDINGER, ISRAEL
Motion No. 001 Page
2 of 2
2 of 2
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TENTATIVE RULING
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2024CUEN023875: BENEFITS SYSTEMS INC vs GOLD COAST SECURITIES INC.
07/09/2024 in Department 21
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Defendant’s Request for an Order Vacating the Judgment
GCSI’s sole stated ground for vacating the Judgment is that GCSI lacked actual notice of the
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Code of Civil Procedure §473.5.
2024CUEN023875: BENEFITS SYSTEMS INC vs GOLD COAST SECURITIES INC.
However, it is well-established that the Court cannot grant relief from the Judgment pursuant to
§473.5, because §473.5 is not applicable to a judgment entered on a sister-state judgment:
“Judgment debtors contend the trial court erred in refusing to vacate the sister state
judgment pursuant to section 473.5. We disagree because section 473.5 is inapplicable to
a sister state judgment entered under the SSFMJA.1
‘When service of a summons has not resulted in actual notice to a party in time to defend
the action and a default or default judgment has been entered against him or her in the
action, he or she may serve and file a notice of motion to set aside the default or default
judgment and for leave to defend the action. The notice of motion shall be served and
filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after
entry of a default judgment against him or her; or (ii) 180 days after service on him or her
of a written notice that the default or default judgment has been entered.’ (§ 473.5, subd.
(a).)
“Judgment debtors contend their motion to vacate judgment was timely under section
473.5, subdivision (a) because it was made within 180 days after entry of the sister state
judgment. They contend the court should have vacated the sister state judgment under
section 473.5, subdivision (a) because their failure to offer a defense in the Indiana action
arose from the absence of service of process and their lack of actual notice. The fatal
fallacy of their position lies in their failure to recognize that section 473.5 is not
applicable to a judgment entered pursuant to the SSFMJA.
“In Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 203 [106 Cal.
Rptr. 2d 854] the court explained, ‘Section 473.5 is addressed to motions to set aside a
default or default judgment … . Section 473.5 is a procedural remedy by which a default
or default judgment may be set aside …; and is inapplicable to a sister state judgment
entered pursuant to the SSFMJA because it is not a default or default judgment.”
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Defendant’s Request for a Stay of Enforcement of the Judgment
Code of Civil Procedure Section 1710.50(a) provides that:
“(a) The court shall grant a stay of enforcement where:
(1) An appeal from the sister state judgment is pending or may be taken in the state which
originally rendered the judgment. Under this paragraph, enforcement shall be stayed until
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(5) Any other circumstance exists where the interests of justice require a stay of
enforcement.”
2024CUEN023875: BENEFITS SYSTEMS INC vs GOLD COAST SECURITIES INC.
With respect to a stay of enforcement under §1710.50(a)(1), GCSI does not submit any evidence
that an appeal is pending from the Texas judgment. Instead, GCSI’s Chief Executive Officer
Tae Ho merely states in his declaration that he intends to file a “Bill for Review.” (See Ho
Decl., ¶4.) However, GCSI fails to cite to any authority or submit any evidence indicating that
it is still able to file a timely appeal of the Texas judgment. And under Texas law, a Bill for
Review does not appear to constitute an appeal at all, but rather a separate equitable proceeding
to challenge a judgment that may no longer be appealed. (See In re Tex. Real Estate Comm'n
(Tex.Ct.App. 2018) 2018 Tex. App. LEXIS 672, at *6-7.) Section 1710.50(a)(1) only provides
for a stay of enforcement for appeals. Accordingly, GCSI fails to establish it is entitled to a stay
of enforcement under §1710.50(a)(1).
With respect to §1710.50(a)(5), GCSI contends that it would be in the “interests of justice” to
stay enforcement of the Judgment “due to the lack of notice resulting in…the denial of due
process by the default judgment….” GCSI’s argument regarding a denial of due process lacks
merit, as
“…[D]ue process of law does not require actual notice, only a method reasonably certain
to accomplish that end. [Citation.] ‘Mullane makes it clear that due process of law
does not require actual notice, but only a method reasonably certain to accomplish that
end. [Citations.] “If the form of substituted service is reasonably calculated to give an
interested party actual notice of the proceedings and an opportunity to be heard, the
traditional notions of fair play and substantial justice implicit in due process are
satisfied.”’ [Citation.]
(Rasooly v. City of Oakley (2018) 29 Cal.App.5th 348, 357.)
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GCSI with a Citation , which is apparently the Texas equivalent of a summons, and the
complaint in the Texas action. (See Decl. of Adraian Ciechanowicz, ¶¶4-8.) GCSI fails to
make any argument – much less submit any evidence – that these efforts were constitutionally
deficient. Accordingly, GCSI fails to show that it has been denied due process.
It also is unclear what staying enforcement of the Judgment for an indefinite period would
achieve, as GCSI fails to submit any evidence indicating that it may still timely appeal the Texas
judgment and – in the absence of such evidence – fails to submit any evidence that it will be able
to overturn the Texas judgment. In the absence of such evidence, a stay of enforcement of the
Judgment would not be in the interests of justice.
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