INDEX NO. 100960/2011
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/24/2011
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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KOREA DEPOSIT INSURANCE COMPANY, Index No. 100960/11
Trustee for Bankrupt Dongbank Peregrine
Securities Co., Ltd.
Plaintiff,
vs. PRE-ARGUMENT
STATEMENT
WARREN ALLDERIGE
Defendant.
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1. The full title of this action is noted in the above caption.
2. The full names of the parties are as noted in the above caption.
3. The attorneys of record for Plaintiff are:
Neil J. Saltzman
71-01 Austin Street, Suite 203
Forest Hills, New York 11375
Tel,: (718) 696-8165
The attorney of record for the Defendant is:
Miller Mayer, LLP
202 East State Street, 7th fl.
POB 6435
Ithaca, New York 14851
Tel.: 607-273-4200
4. The appeal is taken from a decision and order of Supreme Court of the
State of New York, New York County, the Honorable Jeffrey K. Oing JSC, so
ordered October 27th, 2011, filed with the New York County Clerk on November
16th, 2011 and served upon Defendant/ Appellee with Notice of Entry on
November 18th, 2011.
5. The nature if this action is Plaintiff/Appellant’s motion for summary
judgment in lieu of a complaint based on a foreign country money judgment
obtained against Defendant/ Appellee in Korea and a cross motion to dismiss the
action. The dispute before the lower court revolved around the question of
whether the service of process in the underlying Korean action was good and
sufficient service.
6. The lower court denied Plaintiff/ Appellant’s motion for summary
judgment in lieu of a complaint and granted Defendant/ Appellee’s cross motion
for summary judgment dismissing the action.
7. The Court below erred as follows:
(a) The court below failed to determine whether the address at which
the service was carried out was in fact a legitimate address for service
of process under either Korean law or New York law (it was legitimate
under both sets of laws). Instead the court predicated its decision on a
factual conclusion that regardless of whether the address was a proper
legal address for service the court was “not persuaded” that under
CPLR §5304 Defendant had received adequate notice of the
proceedings in Korea in sufficient time to enable him to defend it. Were
the lower court’s methodology to be routinely employed without
consideration of what the rules of civil procedure have to say about it,
any defendant in any case, regardless of how he or she had been served,
would be able to allege that in their particular personal circumstances
they had not known about the litigation and therefore no enforcement
should be had. This reasoning introduces a level of uncertainty into
legal proceedings which formal rules of service of process are meant to
eliminate and leads to unjust results. Had the court taken the legality of
the address used for service in the Korean action under Korean law into
account, and even had the court referred to New York law to consider
the appropriateness and fairness of using that address, it would have
concluded that service in the Korean action should be upheld.
(b) Even if the court’s focus on the purely factual question of whether
defendant in his personal circumstances had a practical opportunity to
defend the Korean action (without regard to procedural law aspects)
was appropriate, the court erred in the way it went about answering that
question. In determining whether Defendant had a reasonable
opportunity to defend the Korean action as a matter of fact, the relevant
question to ask would be what the defendant’s actual relationship to the
address at which he was served was, not how Plaintiff found the
address. However, the court failed to analyze what the defendant’s
actual relationship to that address was and focused only on how the
Plaintiff found out about it. Moreover, evidence regarding the manner
in which the address (which Defendant acknowledges is the address of
a residential apartment belonging to him that he personally visits and
occupies several times a year) was located was provided to the court,
but the court chose not to acknowledge it. Had the court inquired into
the actual relationship of the defendant to the New York apartment, it
would have concluded that the defendant did in fact have an
opportunity to defend against the Korean action.
(c) Even if the court’s focus on the purely factual question of whether
defendant in his personal circumstances had an opportunity to defend
the Korean action was appropriate, its conclusion is not. It is
uncontroverted that a period of 17 months passed between the date of
service in the underlying Korean action at Defendant’s New York
address and the date of entry of judgment in the Korean action. It is also
uncontroverted that Defendant, by his own admission, visited the New
York apartment where service was made “two or three times” a year
throughout the relevant period, so that he most certainly had notice and
an opportunity to respond to the filing before the judgment was entered.
The court below did not consider these uncontroverted facts in
considering whether Defendant had an opportunity to defend himself in
the Korean action.
(d) Even if the court’s manner of analysis was correct, and especially
since the court found the facts as demonstrated to be inconclusive