Plaintiff FR8 Singapore Pte. Ltd. (FR8) brings this action to enforce a money judgment rendered, by default on April 2, 2012, by the High Court of Justice, Queen's Bench Division, London, England, against defendants Albacore Maritime Inc. (Albacore) and Prime Marine Corp. (Prime). Such money judgment (English Judgment) is in the sum of $10,000,000.00, plus $39,846.60 in interest, through March 8, 2012, with interest accruing at $1,106.85 per day, until [*2]date of payment. The English Judgment also provided plaintiff FR8 with costs, to be paid by defendants Albacore and Prime, in the amount of £22,500 to be paid in 14 days of April 2, 2012.

While there is a long factual history between the parties, the facts of this action are simple and undisputed. On April 14, 2008, plaintiff FR8 and defendant Albacore, a subsidiary of defendant Prime, entered into a Memorandum of Agreement (Agreement), for the purchase by defendant Albacore of the vessel Overseas Reginamar from plaintiff FR8, for the purchase price of $58,500,000.00. Defendant Albacore paid a downpayment of $5,850,000.00 on April 16, 2008. Thereafter, defendant Albacore failed to pay the remainder of the purchase price. Pursuant to an arbitration clause in the Agreement, plaintiff FR8 commenced an arbitration proceeding in London, in May 2009, against defendant Albacore for the payment of the difference between the purchase price of Overseas Reginamar and the market value of such vessel, at the time of the breach, less the deposit. Defendant Albacore attempted to invoke the force majeure clause of the Agreement, citing the global financial crisis, as defendant Albacore was unable to secure financing.

In an attempt to compel defendant Prime to arbitrate as an alter ego, on May 9, 2010, plaintiff FR8 commenced an action in Federal Court (Federal Court Action) seeking a judgment that defendant Prime and its subsidiaries are bound to the arbitration clause agreed to by defendant Albacore. In a decision dated December 13, 2010, the Federal Court held that plaintiff FR8 failed to pierce the corporate veil, such that defendant Prime would be bound by the arbitration clause in the Agreement. The Federal Court Action was dismissed on April 14, 2011.

Shortly after the Federal Court decision, which found that plaintiff FR8 failed to pierce the corporate veil, plaintiff FR8 commenced a proceeding in South Africa to attach Overseas Takamar, a vessel owned by a subsidiary of defendant Prime, which is unrelated to defendant Albacore. Overseas Takamar was "arrested" on December 18, 2010 (Arrest). See Declaration of Menelaus Kouzoupis, ¶9. To secure the release of such vessel, defendant Prime entered into a Deed of Guarantee (Guarantee), dated December 27, 2010, with plaintiff FR8, wherein defendant Prime agreed to guarantee defendant Albacore's obligations under the arbitration clause.

At the arbitration hearing in July 2011, defendant Albacore admitted liability on the merits and the hearing was adjourned to November 2011, for calculation of damages. Prior to the adjournment date, plaintiff FR8 and defendants Albacore and Prime entered into a settlement agreement (Settlement Agreement), dated November 16, 2011, whereby defendants Albacore and Prime agreed, inter alia, to pay $5,500,000.00 by February 1, 2012, or $3,500,000.00 by January 31, 2012, and should defendants fail to sign an agreement for the sale and purchase of vessel Freight Margie by January 31, 2012, defendants would be obligated to pay an additional $10,000,000.00, less the initial $5,500,000.00 or $3,500,000.00, to plaintiff FR8, by February 1, 2012. Thereafter, defendants Albacore and Prime failed to sign an agreement for the purchase of Freight Margie, and failed to make any of the agreed upon payments pursuant to the Settlement Agreement.

On February 9, 2012, plaintiff FR8 commenced a proceeding, alleging breach of the Settlement Agreement, in the High Court of Justice, Queen's Bench Division (High Court Action). The proceeding was adjourned from March 29, 2012 to April 2, 2012, at the request of defendants' counsel. On April 2, 2012, defendants Albacore and Prime defaulted and plaintiff [*3]FR8 obtained the English Judgment. Plaintiff FR8 now brings this motion for summary judgment in lieu of complaint, to enforce such judgment.

Pursuant to CPLR 3213, a plaintiff may bring a motion for summary judgment in lieu of complaint where the action is based upon an instrument for the payment of money only, or upon any judgment. The standards of summary judgment are well settled. To grant summary judgment, it must be clear that no material or triable issues of fact are presented. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure...to do [so]." Zuckerman v City of New York, 49 NY2d 557 (1980).

Here, the motion for summary judgment is granted as no triable issues of fact exists. In support of its motion, plaintiff FR8 proffers the affidavit of Menelaus Kouzoupis (Kouzoupis), the handling lawyer in charge of the Settlement Agreement and the High Court Action. It is undisputed that defendants entered into and breached the Settlement Agreement. Further uncontested is the fact that defendants defaulted in the High Court Action on April 2, 2012. As a result of defendants' uncontested default, plaintiff obtained the English Judgment. Thus, plaintiff has established a prima facie entitlement to summary judgement as a matter of law, and the burden shifts to defendants to raise a genuine triable issue of fact.

Defendants collectively oppose plaintiff FR8's motion for summary judgment, arguing that plaintiff FR8 failed to establish that: (I) the foreign judgment is enforceable; (ii) plaintiff FR8 failed to provide a certified copy of the English Judgment; and (iii) statutory grounds for non-recognition of the English Judgment exist.

At the outset, it is noted that, in support of their opposition, defendants proffer only an attorney's affirmation, submitted without the requisite personal knowledge. New York courts have consistently held an attorney's affirmation to be inadequate to oppose a summary judgment motion. See GTF Marketing Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 (1985); Wehringer v Helmsley Spear, 91 AD2d 585, 585 (1st Dep't 1982). Furthermore, an affirmation by an attorney who is without the requisite knowledge of the facts has no probative value. Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561 (1 Dept 1981), aff'd 54 NY2d 715 (1981). "[A] bare affirmation of . . . [an] attorney who demonstrated no personal knowledge . . . is without evidentiary value and thus unavailing." Zuckerman v City of New York, 49 NY2d 557, 563 (1980). Thus, defendants' attorney's conclusory and speculative affirmation is insufficient to raise any factual issues to warrant a denial of the within motion. See GTF Marketing Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 (1985). The Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat a motion for summary judgment. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).

Moreover, even if the court were to consider each of defendants' arguments, they are [*4]insufficient to raise a genuine issue of fact, to warrant the denial of plaintiff FR8's motion for summary judgment in lieu of complaint. Defendants first argue that plaintiff FR8 has failed to describe how service was made on the defendants in the High Court Action. However, the within submissions from plaintiff FR8 specifically detail service of the Sealed Claim Form and the Particulars of Claim to John Krzywkowski, defendants' attorney in England. If fact, the Kouzoupis affidavit states that plaintiff FR8, through its attorney, served defendants in the High Court Action, spoke with defendants' attorney as to the court date in the High Court Action, and even adjourned the date at defendants' attorney's request. Defendants do not dispute any of these facts; their mere allegation that plaintiff FR8 failed to describe service is insufficient to raise a triable issue of fact.

Secondly, defendants claim that CPLR 3213 requires a certified copy of the judgment be submitted with a motion for summary judgment. CPLR 3213 states, in whole, that:

"When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers shall require the defendant to submit answering papers on the motion within the time provided in the notice of motion. The minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service. If the plaintiff sets the hearing date of the motion later than the minimum time therefor, he may require the defendant to serve a copy of his answering papers upon him within such extended period of time, not exceeding ten days, prior to such hearing date. No default judgment may be entered pursuant to subdivision (a) of section 3215 prior to the hearing date of the motion. If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise."

Thus, the plain language of the statute is clear that a certified copy of the English Judgment is not explicitly required. Moreover, defendants fail to dispute that there was such a judgment, and thus, certification of such judgment is not at issue. Nonetheless, this court ordered, by interim order dated May 29, 2012, the submission of a certified copy of the English Judgment, which was duly proffered by plaintiff FR8. Further, the May 29, 2012 interim order provided defendants an opportunity to object to the certified copy of the English Judgment. No such objection was received. As CPLR 3213 does not specifically mandate a certified copy of the judgment, and a certified copy was provided without objection, defendants' argument is unavailing.

Finally, defendants argue that, pursuant to CPLR 5304, plaintiff's motion is defective. In particular, defendants rely on CPLR 5304(b)(4), (5), and (6), which state:

"(b) Other grounds for non-recognition. A foreign country judgment need not be recognized if:...4. the cause of action on which the judgment is based is repugnant to the public policy of this state;5. the judgment conflicts with another final and conclusive judgment;6. the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by [*5]proceedings in that court".

Defendants argue that the English Judgment is repugnant to New York public policy as "parent, subsidiary, or affiliated corporations are treated separately and independently, and one will not be held liable for the contractual obligations, torts, or acts of another. This rule applies even if the corporation is a wholly owned subsidiary." 14 NY Jur.2d Business Relationships § 41. While this may be the case, the English Judgment is based on a default in the High Court Action based on a breach of the Settlement Agreement, which both defendants independently entered into. Defendants further argue that the Arrest of the vessel in South Africa is a vilified process that departs from fundamental precepts of English and American law. Here, however, the "cause of action" mentioned in CPLR 5304(b)(4) is not the Arrest, rather it is the breach of the Settlement Agreement, and subsequent default judgment obtained by plaintiff FR8 in the High Court Action. Defendants do not allege that a breach of contract cause of action is repugnant to New York public policy, and thus, CPLR 5304(b)(4) is inapplicable in this action.

Defendants' reliance on CPLR 5304(b)(5) is similarly inapposite. Defendants argue that since the Federal Court Action held that defendant Prime was not an alter ego of defendant Albacore, and is not liable for defendant Albacore's debts under the MOA, the English Judgment conflicts with the final judgment in the Federal Court Action. However, the English Judgment is based on a default judgment obtained by plaintiff FR8 when defendants failed to appear in the High Court Action for an alleged breach of the Settlement Agreement, in which both defendants Albacore and Prime voluntarily entered into. Unlike in the Federal Court Action, defendant Prime is a party to the Settlement Agreement, which was executed after the decision in the Federal Court Action. Here, plaintiff FR8 is not attempting to pierce the corporate veil, as it was in the Federal Court Action, rather plaintiff FR8 is seeking enforcement of a default judgment entered against two signatories of the breached Settlement Agreement. Thus, the English Judgment does not conflict with the final judgment in the Federal Court Action.

Lastly, defendants argue that, pursuant to CPLR 5304(b)(6), the Agreement provided that disputes between the buyer and seller would be settled by arbitration in London. While plaintiff FR8 does not dispute this, it claims that the initial, underlying contractual dispute regarding the Agreement was subsequently settled pursuant to the Settlement Agreement, and, thus, the Settlement Agreement forms the sole basis for relief that plaintiff FR8 sought in the High Court Action. Plaintiff FR8 argues that the Settlement Agreement, voluntarily entered into by defendants, expressly provides for the English High Courts' exclusive jurisdiction, and required discontinuance of the English arbitration proceedings by mutual consent. Clearly, the "dispute in question", as referred to in CPLR 5304(b)(6), is not the breach of the initial Agreement, rather it is defendants Albacore and Prime's breach of the Settlement Agreement, which specifically provides for jurisdiction in the High Courts of England, and, thus, defendants' argument is without merit.

Accordingly, it is

ORDERED that plaintiff FR8's motion for summary judgment in lieu of compliant is granted; and it is further

ORDERED that the issue of damages is respectfully referred to a Special Referee in [*6]accordance with CPLR §4317(b), to hear and determine; and it is further

ORDERED that within 45 days of entry of this order, plaintiff FR8 shall serve a copy of this order with notice of entry upon defendants, as well the Clerk of the Judicial Support Office to arrange a calendar date for the reference to a Special Referee.

This constitutes the decision/order of the Court.

Dated:

DORIS LING-COHAN, J.S.C.