Appeal from an order of the District Court of Suffolk County, Fourth District (Toni A. Bean, J.), entered September 28, 2004, deemed (CPLR 5520) an appeal from the judgment of that court entered November 4, 2004. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion to dismiss the action.

Order unanimously affirmed without costs.

The court below properly found that the Canadian judgment directing the payment of a sum certain representing equitable distribution of the marital estate of the parties was enforceable in this action brought pursuant to CPLR article 53. CPLR 5301 (b) provides that for purposes of article 53, codifying New York's adoption of the Uniform Foreign Country Money-Judgments Recognition Act, a "foreign country judgment" is "any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial or family matters." As the judgment at issue is not an award of support, even though entered in a matrimonial proceeding, but a money judgment representing equitable distribution of the marital estate, it falls within the ambit of this provision.

Although defendant appears to question the impartiality of the Canadian tribunal, New York State and federal courts "have recognized the Canadian judicial system as 'a sister common law jurisdiction with procedures akin to our own'" (Attorney Gen. of Can. v Gorman, 2 Misc 3d 693, 698 [Civ Ct, Queens County 2003], quoting Clarkson Co., Ltd. v Shaheen, 544 F2d 624, [*2]630 [2d Cir 1976]). Nor was any evidence submitted of judicial misconduct in the Canadian divorce proceeding. If defendant objected to that court's decision on the merits, her proper remedy was to pursue an appeal in the Canadian courts.

Defendant's contention that the Canadian court lacked personal jurisdiction over her (see CPLR 5304 [a] [2]) is similarly without merit. Plaintiff established that he made a proper application to the Canadian court for substituted service, a procedure that is recognized in the State of New York (see e.g. CPLR 308 [5]), submitted an affidavit of such service to the New York court, and submitted evidence that defendant appeared and entered a counter-petition in the Canadian proceeding, which, under New York law, is sufficient to invoke personal jurisdiction even where service is arguably defective (see e.g. Textile Tech. Exch. v Davis, 81 NY2d 56 [1993]; Sorrenti v Shane, 1 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2003]).

Although the order striking defendant's answer and counter-petition in the Canadian action and making the monetary award from the division of the marital estate was entered upon the default of defendant, there is no evidence in the record that she attempted to vacate the default in the Canadian courts. Rather, she improperly sought to argue the propriety of the Canadian court's actions before the court below and before this court.

In regard to the allegedly improper service of the summons and complaint in the present action, defendant made no pre-answer motion to dismiss upon this ground. Rather, she answered, entering a general denial, without raising any affirmative defenses. Thus, the objection of lack of personal jurisdiction pursuant to CPLR 3211 (a) (8) was waived (see CPLR 3211 [e]). [*3]

Defendant's contention that the applicable exchange rate was incorrect was improperly raised for the first time on appeal and has not been considered.
Decision Date: September 16, 2005