The following papers numbered 1 to 18 read on this motion by defendant for summary judgment dismissing the complaint; and cross-motion by plaintiff for summary judgment in her favor declaring, inter alia, declaring the deed executed on July 18, 2008 and the correction deed executed on August 11, 2008 by Paulette Perrot null and void, declaring that Paulette Perrot and the Estate of Robert Perrot own the property as tenants in common, directing that the property be sold and the proceeds divided equally between the Estate of Robert Perrot and defendant Paulette Perrot.

PAPERS

NUMBERED

Notice of Motion-Affidavits-Exhibits .......... 1 - 6

Notice of Cross-Motion-Affidavits-Exhibits .... 7 - 12

Replying Affidavit-Exhibits.................... 13 - 16

Replying Affidavit............................. 17 - 18

Upon the foregoing papers it is ordered that the motion and cross-motion are determined as follows.

Robert Perrot(Robert) and Paulette Perrot(Paulette), both born in France, were married in New York on April 10, 1948. After their marriage, Robert and Paulette resided in Jamaica, New York. On March 1, 1951, Robert purchased the premises located at 14-18 28th Ave., Astoria, NY (hereinafter the subject property) when the deed being solely in his name. On March 31, 1951 Robert executed a deed conveying the subject property from Robert Perrot to Robert Perrot and Paulette Perrot, his wife. The subject property became the marital residence. [*2]

On June 24, 1964 Robert and Paulette entered into a separation agreement in which it was agreed, inter alia, that although they would live separate and apart, they could both occupy the subject premises. It was agreed that Robert would occupy the second floor, Paulette would occupy the basement, the third apartment would be rented and operated by them as a partnership sharing expenses and profits. Paulette has lived in the basement of the subject property since 1964. Robert traveled back and forth between France and the United States however, he lived in his portion of the premises on and off until 1999, when he retired and moved to France. Robert died on April 26, 2008 in France. Paulette became a United States citizen in 1952, however, it appears that Robert never obtained United States citizenship.

After learning of Robert's death, Paulette executed a deed dated July 18, 2008 and a correction deed dated August 11, 2008 conveying the property from Paulette Perrot as surviving spouse of Robert Perrot to Paulette Perrot and Dominique Perrot-Chartrand as joint tenants with right of survivorship. Dominique Perrot-Chartrand, the co-defendant, is Robert's and Paulette's daughter.

Plaintiff commenced this action, inter alia, to set aside the two 2008 deeds. Plaintiff claims that Robert and Paulette were divorced in 1967 by a judgment of divorce of the High Court of France which converted the estate in which the subject property was held from tenants by the entirety into tenants in common. As a tenant in common Paulette did not become the sole owner of the property upon Robert's death and, thus, any deed which purports to convey the whole of the property is void. Plaintiff further claims that she is Robert's surviving spouse having married Robert in France in 1978, and that as Robert's sole heir under the will Robert executed in France in which he left bequeathed his share of the house to her.

Defendants now move for summary judgment in their favor dismissing the complaint on the ground that the ex-parte judgment of divorce of the French Court in which she did not appear and in which she was not served with process, did not convert the tenants by the entirety into tenants in common. Plaintiff cross-moves for summary judgment in her favor on the ground that regardless of Paulette becoming a United States citizen, as far as France was concerned, she also remained a French citizen and thus, the French Court had personal jurisdiction over her.

It is well settled that while not required to do so, "the courts of this State will generally accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States" (Greschler v Greschler, 51 NY2d 368, 376 [1980]; Aranoff v. Aranoff, 226 AD2d 657, 658 [1996]). Where one spouse is a resident of a foreign country and the non-resident spouse is afforded sufficient notice of a divorce proceeding, but the foreign country does not acquire personal jurisdiction over the non-resident spouse, any divorce obtained in the foreign country is in rem only, and will terminate the parties' marital status, but will not affect the non-resident spouse's marital economic rights ( see Estin v. Estin, 334 US 541 [1948]; Williams v. North Carolina, 325 US 226 [1942]; (Greshler v. Greshler, supra; Vanderbilt v. Vanderbilt, 1 NY2d 342 [1956], aff'd 354 US 416 [1957]; Somma v. Somma, 19 AD3d 477 [2005]; Braithwaite v. [*3]Braithwaite, 299 AD2d 383 [2002]).

Defendants have demonstrated, prima facie, their entitlement to summary judgment by submitting the deposition testimony of Paulette and documentary evidence which establish that the French Court did not have personal jurisdiction over Paulette and that Paulette never appeared in the French action. Paulette testified that in 1967 and again in 1968 she received a letter from the French Consulate General in New York. Each letter stated that a legal document from the French ministry was received addressed to her which would be mailed to her after she signed and returned a receipt for the documents. It further instructed that she should not claim the document in person. She did not respond to the letter and she never received any court documents from the Consulate or by any other means. She first learned of the divorce judgment in 1997.

In opposition to her motion and in support of her cross-motion the plaintiff submitted, inter alia, the affirmation of Max Lewy, one of the attorneys who represented Robert in the French divorce action. Mr. Lewy asserts that because Paulette is considered a French citizen by virtue of having been born in France, she was served through the "Parquet Etranger", the Foreign Public Prosecutor Office and the Ministry of Foreign Affairs. The Ministry of Foreign Affairs would transmit the notice to the French Consulate in New York. The French Consulate would advise the defendant about the notice and inform her that it could be picked up at her convenience. Plaintiff argues that Paulette should not be allowed to argue lack of personal jurisdiction based upon her refusal to pick-up the papers from the consulate.

However, the defendant's documentary evidence clearly shows that the Consulate did not deliver the papers to Paulette or inform her of the nature of the papers in its possession nor advise that she could pick them up herself. On the contrary, she was directed not to go to the Consulate to pick-up the papers. Mr. Lewy further claims that, as required by the French Court, the attorneys for Robert also mailed, by registered mail return receipt, a copy of the papers to the defendant. However, there is no proof of either the mailing or receipt of the papers. Mr. Lewy attributes the lack of evidence to the lengthy time since the French action and asserts that such proof must have existed since the French judgment so states.

Mr. Lewy's claim that the French Court's recitals regarding jurisdiction is sufficient to establish the existence of personal jurisdiction is unpersuasive and, this court, does not have to accept it at face value (see Williams v. State of N.C., 325 US 226, 229 [1945]; Rosenbaum v. Rosenbaum, 309 NY 371, 375 [1955]). A New York Court is permitted to ascertain the basis of the foreign court's jurisdiction (see Claire Lucia D. v. Russell Morris D., Jr., 43 AD3d 286, 287 [2007] citing CIBC Mellon Trust Co. v Mora Hotel Corp., 296 AD2d 81, 93 [2002], aff'd 100 NY2d 215 [2003], cert denied 540 US 948 [2003]). The inquiry turns on whether the foreign court's exercise of jurisdiction comports with New York's concept of jurisdiction, and if so, whether that foreign jurisdiction shares our notions of procedure and due process (see Galliano, S.A. v. Stallion, Inc., 15 NY3d 75, 81 [2010] citing Sung Hwan Co., Ltd. v Rite Aid Corp., 7 NY3d 78, 83 [2006]). [*4]

The French court's exercise of personal jurisdiction is predicated entirely upon the fact that Paulette was born in France. Although such fact may justify the French court's exercise of personal "long arm" jurisdiction, "one is not bound by a judgment in personam in a litigation in which ...[she] has not been made a party by service of process." (Taylor v. Sturgell, 553 U.S. 880, 881 [2008] quoting Hansberry v. Lee, 311 U.S. 32, 40-41 [1940]). Procedure and due process requires that the method of service be "reasonably calculated, under all the circumstances, to apprise" the defendant of the action in sufficient time to defend (see (Mullane v. Central Hanover Bank & Trust Co., 339 US 306, 314 [1950]).

The method of service relied upon in this case does not satisfy this criteria. Paulette was allegedly served by substituted service as described by Mr. Lewy, without any attempt

to effect "personal service" either under the laws of New York or the Hague Convention (see Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 UST 361, TIAS No. 6638 [1969]). Substituted service may be sufficient where the whereabouts of the defendant are unknown or where personal service is attempted and could not be made (see Mullane v. Central Hanover Bank & Trust Co., supra at 317). In this case, however, there was no attempt to personally serve Paulette. The local consulate's attempt to transmit the papers was, at best, perfunctory without any real attempt to effect delivery. The plaintiff submitted no evidence to demonstrate that Paulette received notice of the French action prior to judgment by any means despite her continued residence at the subject property. Under the circumstances of this case, the method of service provided by the laws of France for serving a non-resident, who obtained United States citizenship and was, and is still, domiciled in New York was insufficient to confer personal jurisdiction of Paulette.

Inasmuch as the French Court did not have personal jurisdiction over Paulette, and Paulette did not appear, either in person or by an attorney the French divorce judgment is effective only as to the termination of the marital status and it did not have the affect of converting the estate in the subject property from tenants by the entirety into tenants in common (see Vanderbilt v. Vanderbilt, supra; Williams v. State of N.C., supra).

Accordingly, the defendants' motion for summary judgment dismissing the complaint is granted and the plaintiff's cross-motion is denied.

Dated: April 6, 2011

DNo. 44

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J.S.C.

OCA e-submission: no Judge E-Mail