Upon the foregoing papers, Plaintiff TIANZHU COAL COMPANY LTD. under YAOJIE COAL AND ELECTRICITY GROUPS motion for an order 1) pursuant to Civil Practice Law and Rules (CPLR) § 3213 and CPLR Art. 53, granting it summary judgment in lieu of a complaint based upon this courts recognition of the foreign judgment referenced herein; and, 2) directing the clerk to enter judgment in Plaintiffs favor against Defendant MA JU in the amount of $12,497,607, together with applicable post-judgment interest, costs, and disbursements is determined as set forth hereinafter.
Factual and Procedural Background
Plaintiff TIANZHU COAL COMPANY LTD. under YAOJIE COAL AND ELECTRICITY GROUP (Tianzhu Coal Company) moves, among other things, for an order granting it summary judgment in lieu of a complaint. Specifically, Tianzhu Coal Company seeks to have this court recognize a foreign money judgment issued against Defendant MA JU by the Gansu Province Lanzhou Intermediate Peoples Court (the Intermediate Court) and affirmed by the High Peoples Court of Gansu (the High Court) held in and for the Peoples Republic of China (China).
The Transfer Agreement
Non-party Wujan An and Ma Ju were shareholders in Shangai Xunhui Network Technology, Development Co., Ltd. (the Xunhui Company), which owned a coal mine (NYSCEF Doc. No. 22, ¶ 10). On November 25, 2008,
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Tianzhu Coal Company entered into an equity transfer agreement (the Transfer Agreement) with Wujan An and Ma Ju, whereby it was agreed that Wujan Ans 80% equity interest (including, without limitation, rights to mineral exploration) in the Xunhui Company would be transferred to Tianzhu Coal Company for the transfer price of 190 million yuan (NYSCEF Doc. No. 8, p. 24-25). The transfer price was to be paid in installments (NYSCEF Doc. No. 8, p. 24-25). On December 11, 2008, it was confirmed that the Xunhui Company had changed its name to Tianzhu Huasheng Coal Industry Company (the Huasheng Company) (NYSCEF Doc. No. 8, p. 25). On December 17, 2008, Tianzhu Coal Company remitted the first installment payment in the amount of 80 million yuan to Wujan An; however, Tianzhu Coal Company failed to remit the remaining installment payments (NYSCEF Doc. No. 8, p. 25-26).
The Termination Agreement
In March 2011, Wujan An commenced a lawsuit against Tianzhu Coal Company in the High Court to enforce the Transfer Agreement (NYSCEF Doc. No. 8, p. 26). The High Court issued a judgment directing Tianzhu Coal Company to pay the remainder of the transfer price and Tianzhu Coal Company appealed (NYSCEF Doc. No. 8, 26). In the interim, on April 17, 2012, Wujan An executed a power of attorney authorizing Ma Ju to deal with all procedures necessary to cancel the original contract on his behalf (NYSCEF Doc. No. 8, p. 26).
On June 7, 2012, Tianzhu Coal Company and Ma Ju, both in his capacity and on behalf of Wujan An, entered into a termination agreement (the Termination Agreement) whereby they agreed to terminate the Transfer Agreement (NYSCEF Doc. No. 8, p. 26). According to the Termination Agreement, Ma Ju was to return the 80 million yuan previously remitted to Wujan An, along with 6.7428 million yuan that had been borrowed by the Huasheng Company from the Tianzhu Coal Company, totaling 86.7428 million yuan (NYSCEF Doc. No. 8, p. 27). The Termination Agreement provides that within three days of its execution, Ma Ju was to remit 20 million yuan and that the remaining 66.7428 million yuan would be remitted following the provincial State-owned Assets Supervision and Administration Commission of the State Councils (SASAC)
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approval of the Termination Agreement (NYSCEF Doc. No. 8, p. 27-28). On November 8, 2013, the High Court issued a judgment that, among other things, approved the Termination Agreement as binding (NYSCEF Doc. No. 8, p. 28-29). Yet, Ma Ju failed to remit payments in accordance with the Termination Agreement (NYSCEF Doc. No. 7, p. 50).
The Judgments
On January 4, 2016, Tianzhu Coal Company commenced a lawsuit against Ma Ju, Wujan An, and Gansu Tuanzhu Guasheng Coal Industry Co., Ltd.
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in the Intermediate Court to enforce the Termination Agreement (NYSCEF Doc. No. 7, p. 28).
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The case was put on the record with all parties represented by counsel (NYSCEF Doc. No. 7, p. 28-29). On January 22, 2017,
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the Intermediate Court issued a judgment (the Original Judgment) whereby Ma Ju was directed, within 10 days of the Original Judgment becoming effective, to remit to Tianzhu Coal Company the first installment payment in the amount of 80 million yuan and the Huasheng Companys borrowings in the amount of 6.7428 million yuan, plus interest in the amount of 4.2238 million yuan (aggregating RMB 90,966,600) (NYSCEF Doc. No. 7, p. 49, 51). According to the Original Judgment, Ma Ju was also directed to pay 530,337 yuan in costs and fees (NYSCEF Doc. No. 7, p. 51).
On April 14, 2017, Tianzhu Coal Company and Ma Ju appealed the Original Judgment (NYSCEF Doc. No. 8, p. 21). On May 18, 2017, the case was heard publicly, with Ma Ju represented by counsel (NYSCEF Doc. No. 8, p. 21-22). By judgment dated June 20, 2017 (the Final Judgment), the High Court affirmed the Original Judgment (NYSCEF Doc. No. 8, p. 36).
The Enforcement Ruling
Ma Ju failed to remit payment; accordingly, Tianzhu Coal Company commenced an enforcement proceeding in the Intermediate Court (NYSCEF Doc. No. 9, p. 8). On May 7, 2018, the Intermediate Court issued a ruling (the Execution Order) whereby Ma Jus bank deposit was frozen and allocated to satisfy the first installment payment of 80 million yuan, the Huasheng Companys borrowings in the amount of 6.7428 million yuan, interest in the amount of 4.2238 million yuan, fees in the amount of 525,337 yuan, preservation costs in the amount of 5,000 yuan, and an application execution charge in the amount of 158,897 yuan (aggregating RMB 91,655,834) (NYSCEF Doc. No. 9, p. 8). According to the Execution Order, in the event of a shortfall, it shall seal up, detain, auction and sell off the equivalent property between the person subject to enforcement and the subject matter of enforcement (NYSCEF Doc. No. 9, p. 8).
Collectively, the Original Judgment, the Final Judgment, and the Enforcement Order are referred to hereinafter as the Foreign Judgments.
The Instant Action
Tianzhu Coal Company commenced this action on December 19, 2023 by filing a summons with notice of motion for summary judgment in lieu of a complaint. Initially, Tianzhu Coal Company seeks to have this court recognize the Foreign Judgments issued against Ma Ju. Upon this courts recognition of the Foreign Judgments, Tianzhu Coal Company moves for an order directing entry of judgment in the amount of $12,497,607,
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together with applicable post-judgment interest, costs, and disbursements.
In support of its motion, Tianzhu Coal Company submits copies of the Foreign Judgments, along with their English translations, notarial certificates, and final certifications (NYSCEF Doc. Nos. 7-9). Tianzhu Coal Company also submits the affidavit of Timothy Hallett, a professional Chinese interpreter, who prepared the English translations and certifies to the accuracy thereof (NYSCEF Doc. No. 5, ¶ 5-6). Tianzhu Coal Company asserts that the Foreign Judgments satisfy all criteria necessary for them to be recognized in the State of New York.
In opposition, Ma Ju argues that summary judgment should be denied, and this matter converted into a plenary proceeding. Central to Ma Jus argument is the claim that the Foreign Judgments were issued as a form of political retaliation against him due to his prominence in the Hui Muslim community and his public criticism of the Chinese Communist Party (the Party) and the government.
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According to Ma Ju,
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he is a Hui Muslim whose family leads Jahriyya, a Sufi Islam community that is active in the Gansu Province of China (NYSCEF Doc. No. 22, ¶¶ 2-3). Ma Ju is also a successful businessman, whose career is centered in the Gansu Province, where he has a significant network (NYSCEF Doc. No. 22, ¶ 4). Due to his religious and business affiliations, Ma Ju has an unusual amount of influence with the Chinese Muslim community (NYSCEF Doc. No. 22, ¶ 5). This influence has drawn the attention of the Party, who has made repeated attempts to recruit Ma Ju to work for the government (NYSCEF Doc. No. 22, ¶¶ 5, 7). However, Ma Ju has always politely declined (NYSCEF Doc. No. 22, ¶¶ 8, 45).
In 2008, when Tianzhu Coal Company,
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Wujan An, and Ma Ju entered into the Transfer Agreement, Ma Jus 20% equity interest in the Xunhui Company remained unaffected (NYSCEF Doc. No. 22, ¶¶ 13, 16). Accordingly, it was agreed between Ma Ju and Tianzhu Coal Companys chairman, Li Renzhi, that Ma Ju would remain involved and that they would grow the business together (NYSCEF Doc. No. 22, ¶ 16). At the beginning of 2009, Ma Ju met with Li Renzhi, who told him that he had an investment opportunity but was short RMB 2 million, noting that Wujan An had recently received his first installment payment (NYSCEF Doc. No. 22, ¶ 17). From this conversation, Ma Ju inferred that Li Renzhi was soliciting a loan, if not a bribe; consequently he loaned Li Renzhi the money on Wujan Ans behalf (NYSCEF Doc. No. 22, ¶¶ 17-19). In mid-2009, Ma Ju was informed that Li Renzhi had been arrested for corruption and accepting bribes (NYSCEF Doc. No. 22, ¶ 21). Shortly thereafter, the Gansu Party Committee detained Ma Ju for two weeks during which time he was tortured and interrogated regarding his dealings with Li Renzhi (NYSCEF Doc. No. 22, ¶¶ 23-30). To evade arrest and prosecution, Ma Ju cooperated by recording a prepared statement whereby he admitted to giving Li Renzhi a bribe (NYSCEF Doc. No. 22, ¶ 28). In July 2009, Ma Ju was detained and interrogated, this time under suspicion of terrorism due to his public criticism of the governments repression of religious minorities (NYSCEF Doc. No. 22, ¶ 34-35). By 2011, Ma Ju felt that he was being targeted for his activism on behalf of religious minorities and relocated himself and his family to Dubai, although he occasionally returned to China (NYSCEF Doc. No. 22, ¶¶ 36, 45).
In 2012, Wujan An contacted Ma Ju, claiming that he had been threatened by the Central Political and Legal Affairs Commission and the SASAC regarding his lawsuit against Tianzhu Coal Company (NYSCEF Doc. No. 22, ¶ 38). Wujan An suggested that he and Ma Ju sell their equity to a third-party purchaser (NYSCEF Doc. No. 22, ¶ 42). Although Tianzhu Coal Company initially agreed, it insisted that the Transfer Agreement be terminated first; accordingly, Ma Ju entered into the Termination Agreement (NYSCEF Doc. No. 22, ¶ 42). Nevertheless, Ma Ju maintains that the parties agreed that Tianzhu Coal Company would receive repayment of the first installment payment from the sale proceeds once a third-party purchaser had been located (NYSCEF Doc. No. 22, ¶¶ 42-43).
In 2014, during one of Ma Jus visits to China, the Party, once again, tried to recruit him (NYSCEF Doc. No. 22, ¶¶ 45-49). However, this time, when Ma Ju declined, he was explicitly threatened (NYSCEF Doc. No. 22, ¶¶ 45-49).
At the end of 2016, beginning of 2017, Ma Ju was informed that Tianzhu Coal Company had filed a lawsuit against him (NYSCEF Doc. No. 22, ¶ 53). Ma Ju spoke with Tianzhu Coal Companys legal counsel who claimed that, as a state-owned entity, Tianzhu Coal Company had been ordered by the SASAC to sue Ma Ju (NYSCEF Doc. No. 22, ¶ 55). Ma Ju also spoke with an assessor from the Intermediate Court who told him that the Intermediate Court had been ordered to rule against him (NYSCEF Doc. No. 22, ¶ 58). Within days of the Original Judgment being issued, Ma Ju was contacted by the Party and informed that this would be his last chance to unite with the Party and the government (NYSCEF Doc. No. 22, ¶ 60).
Notwithstanding the Partys threats, Ma Ju appealed the Original Judgment (NYSCEF Doc. No. 22, ¶ 61). While the appeal was pending, Ma Ju spoke with one of the judges, who assured him that the Original Judgment would be reversed (NYSCEF Doc. No. 22, ¶ 63-65). When High Court affirmed the Original Judgment, Ma Ju called the same judge to ask what had happened (NYSCEF Doc. No. 22, ¶ 67). The judge told Ma Ju that he and his colleagues had been instructed to affirm the Original Judgment and that Ma Ju must have upset some very important people (NYSCEF Doc. No. 22, ¶ 67). Thereafter, Ma Jus lawyers refused to pursue the case further, claiming that they, too, had been threatened by the authorities (NYSCEF Doc. No. 22, ¶ 70).
In 2017-2018, around the same time that the courts were ruling against him, Ma Ju continued to publicly criticize the governments treatment of religious minorities (NYSCEF Doc. No. 22, ¶ 73-79). In July 2017, Ma Ju traveled to the United States to visit the State Department in Washington D.C., the United Nations, and several international human rights organizations (NYSCEF Doc. No. 22, ¶ 76). Between 2017-2018, Ma Ju gathered evidence regarding concentration camps in the Xinjiang Province, became a commentator on social media platforms, started his own podcast View from Dubai, and organized protests to protect mosques in Ningxia (NYSCEF Doc. No. 22, ¶ 77-78). During this time period, members of Ma Jus family were detained and interrogated about him (NYSCEF Doc. No. 22, ¶¶ 76-84). In July 2019, Ma Ju had to flee Dubai to escape arrest (NYSCEF Doc. No. 22, ¶ 86). Ma Ju left behind most of his material possessions and wealth, which he claims were then confiscated by the government (NYSCEF Doc. No. 22, ¶ 88). Since July 2019, Ma Ju has lived in New York and in August 2019, he applied for political asylum (NYSCEF Doc. No. 22, ¶ 87; NYSCEF Doc. No. 25).
In 2023, while in the United States, Ma Ju intensified [his] human rights advocacy efforts (NYSCEF Doc. No. 22, ¶ 90). Specifically, Ma Ju started a foundation called the Hope Umbrella International Foundation, which, in collaboration with the Network of Chinese Human Rights Defenders, submitted a report entitled Chinas Ethnic Hui Community at Risk of Erasure to the UN Committee on Economic, Social, and Cultural Rights (NYSCEF Doc. No. 22, ¶ 91; see also NYSCEF Doc. No. 29). On February 15, 2023, this report was published on the UNs website; and, on March 21, 2023, Ma Ju presented the report at a congressional briefing in Washington, D.C. (NYSCEF Doc. No. 22, ¶¶ 91-92; see also NYSCEF Doc. No. 29).
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In May 2023, Ma Ju helped organize a protest against the Chinese governments removal of the domes at a mosque called the Najiaying Mosque, in the Yunnan Province (NYSCEF Doc. No. 22, ¶ 93). Based upon the aforementioned, Ma Ju asserts that the instant action, commenced on December 19, 2023, was in retaliation for his increasing public profile throughout 2023 (NYSCEF Doc. No. 22, ¶ 95; NYSCEF Doc. No. 29).
Ma Ju argues that this court cannot recognize the Foreign Judgments because CPLR § 5304(a)(1) prohibits recognition of foreign judgments rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law. Ma Ju further argues that there are issues of material fact as to whether the Foreign Judgments were procured by fraud and corruption; whether Ma Ju had sufficient notice; and, whether enforcing the Foreign Judgments would violate public policy. Finally, Ma Ju argues that Tianzhu Coal Company failed properly authenticate the Foreign Judgments pursuant to CPLR 4542.
In reply, Tianzhu Coal Company argues that the United States has routinely determined that China has impartial tribunals compatible with due process of law. Tianzhu Coal Company also argues that Ma Ju had ample notice and opportunity to defend himself, as evidenced by his participation in each of the proceedings and his representation by counsel. Tianzhu Coal Company further argues that Ma Jus claims regarding fraud and corruption should be rejected because they constitute self-serving, inadmissible hearsay. In any event, Tianzhu Coal Company argues that the Foreign Judgments were not procured by fraud because there are no allegations that Ma Ju was prevented from presenting his case or that the Foreign Judgments lacked a rational basis. Tianzhu Coal Company further argues that it would not be against public policy to enforce an award of damages for breach of contract. Finally, Tianzhu Coal Company argues that the Foreign Judgments are authentic and admissible.
For the reasons set forth hereinafter, Tianzhu Coal Companys motion is granted.
Analysis
A. Authentication
As an initial procedural matter, this court will address whether the Foreign Judgments have been properly authenticated. According to CPLR 4542:
"[a] foreign official record . . . may be evidenced by . . . a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position
1. of the attesting person, or
2. of any foreign official whose certificate of genuineness of signature and official position
(i) relates to the attestation, or
(ii) is in a chain of certificates of genuineness of signature and official position relating to the attestation" (CPLR 4542[a]).
CPLR 4542 further provides that [a] final certification may be made by . . . vice consul . . . of the United States (CPLR 4542[b]). Overall, CPLR 4542 is designed to foster simplification and flexibility in the admission of foreign records and documents (Estate of Perez, 977 NYS2d 669 (Sur Ct, Nassau County 2013]).
Tianzhu Coal Company submits a copy of each of the Foreign Judgments in Chinese, along with their English translations (NYSCEF Doc. Nos. 7-9). Annexed to each of the Foreign Judgments are two notarial certificates, each bearing the notarization of an individual identified as He Juan, who certifies that the copy conforms to the original and that the English version conforms to the Chinese version (NYSCEF Doc. Nos. 7-9). Also annexed to each of the Foreign Judgments is a final certification by Theo Castellano-Wood, Vice Consul of the United States of America in Beijing, the Peoples Republic of China, who states that Junling Lu, an officer of the Ministry of Foreign Affairs, has affixed their signature and seal to the Foreign Judgments (NYSCEF Doc. Nos. 7-9). Given that the final certification is made by a vice consul who certifies that a foreign official has attested to the genuineness of the Foreign Judgments, Tianzhu Coal Company has sufficiently authenticated the Foreign Judgments pursuant to the requirements set forth in CPLR 4542(a)(2)(i).
B. Recognition of the Foreign Judgments
Next, this court will address Plaintiffs motion for an order granting it summary judgment in lieu of a complaint based upon this courts recognition of the Foreign Judgments; and, for an order directing entry of judgment in the amount of $12,497,607, plus applicable post-judgment interest, costs, and disbursements.
Where, as here, recognition of a foreign country judgment is sought as an original matter, the issue of recognition shall be raised by filing an action on the judgment or a motion for summary judgment in lieu of complaint seeking recognition of the foreign country judgment (CPLR § 5303[b]). New York has traditionally been a generous forum in which to enforce judgments for money damages rendered by foreign courts (CIBC Mellon Tr. Co. v Mora Hotel Corp. N.V., 100 NY2d 215 [2003]). Article 53 was designed to codify and clarify existing case law on the subject and, more importantly, to promote the efficient enforcement of New York judgments abroad by assuring foreign jurisdictions that their judgments would receive streamlined enforcement here (Id.).
i. Application of Article 53
Article 53 applies to a foreign judgment to the extent that such judgment: 1. grants or denies recovery of a sum of money; and 2. under the law of the foreign country where rendered, is final, conclusive and enforceable even though an appeal therefrom is pending or it is subject to appeal (CPLR § 5302[a][1-2]). As amended in 2021,
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CPLR § 5302 provides that [a] party seeking recognition of a foreign country judgment has the burden of establishing that [Art. 53] applies to the foreign country judgment (CPLR § 5302[b]). To this end, Tianzhu Coal Company has demonstrated that the Original Judgment grants recovery of a sum of money aggregating RMB 90,966,600 (NYSCEF Doc. No. 7). Moreover, Tianzhu Coal Company has demonstrated that under the laws of China, the Original Judgment has been rendered final and conclusive as affirmed by the Final Order (NYSCEF Doc. No. 8). Finally, Tianzhu Coal Company has demonstrated that the Original Judgment is enforceable, as evidenced by the Enforcement Order (NYSCEF Doc. Nos. 8-9). Thus, Tianzhu Coal Company has satisfied its burden by establishing that Article 53 applies to the Foreign Judgments.
ii. Grounds for non-recognition
Subject to the enumerated grounds for non-recognition set forth in CPLR § 5304, a court of this state shall recognize a foreign country judgment to which [Art. 53] applies as conclusive between the parties to the extent that it grants or denies recovery of a sum of money (CPLR § 5303[a]). According to CPLR § 5304, there are three mandatory grounds for non-recognition and nine discretionary grounds for non-recognition (CPLR § 5304[a][b]). As amended in 2021,
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CPLR § 5304 provides that [a] party resisting recognition of a foreign country judgment has the burden of establishing that a ground for non-recognition . . . exists (CPLR § 5304[c]).
In opposition, Ma Jus principal argument is that a mandatory ground for non-recognition exists because [a] court of this state may not recognize a foreign country judgment if . . . the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law (CPLR § 5304[a][1]). It is critical to note that CPLR § 5304(a)(1), refers to the judicial system as a whole, not to the specific proceeding affecting the parties (compare CPLR § 5403[a][1], with CPLR § 5304[b][7]; see also David D. Siegel & Patrick M. Connors, New York Practice § 472 [6th ed, June 2024 update]). In determining this issue, CPLR 5304(a)(1) does not demand that the foreign tribunals procedures exactly match those of New York. Rather, the statute is satisfied if the foreign courts procedures are compatible with the requirements of due process of law (CIBC Mellon Tr. Co., 100 NY2d at 222 [internal citations omitted]). In addition to his own affidavit, Ma Ju submits affidavits from various experts in the field of Chinas legal and political system (NYSCEF Doc. Nos. 27, 31-33). These experts provide an overview of Chinas legal and political system, its lack of an independent judiciary, the united front strategy, the United Front Work Department, and transnational repression (NYSCEF Doc. Nos. 27, 31-33). These experts also opine that Ma Jus assertions of political retaliation and transnational repression are plausible (NYSCEF Doc. Nos. 27, 31-33). Nevertheless, these affidavits, which hinge on the credibility of each expert, cannot establish, as a matter of law, that Chinas judicial system, as a whole, lacks impartiality or lacks compliance with the requirements of due process (see, e.g., Liu v Guan, 225 AD3d 749 [2d Dept 2024]).
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Thus, Ma Ju has failed to establish the existence of a mandatory ground for non-recognition pursuant to CPLR § 5304(a)(1).
Ma Ju next argues that a discretionary ground for non-recognition exists because [a] court of this state need not recognize a foreign country judgment if . . . the defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend (CPLR § 5304[b][1]). However, Ma Jus claim that he lacked sufficient notice is contradicted by his participation in the legal proceedings brought before the Intermediate Court and, on appeal, before the High Court. Thus, Ma Ju has failed to establish the existence of a discretionary ground for non-recognition pursuant to CPLR § 5304(b)(1).
Ma Ju also argues that a discretionary ground for non-recognition exists because [a] court of this state need not recognize a foreign country judgment if . . . the judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case (CPLR § 5304[b][2]).
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Here, Ma Jus arguments are misplaced. Although Ma Ju asserts that the Foreign Judgments were procured by fraud and corruption as a form of political retaliation, he does not assert that the alleged fraud deprived him of the opportunity to present his case. In any event, such assertion would be contradicted by Ma Jus participation in the legal proceedings brought before the Intermediate Court and, on appeal, before the High Court. Thus, Ma Ju has failed to establish the existence of a discretionary ground for non-recognition pursuant to CPLR § 5304(b)(2).
Finally, Ma Ju argues that a discretionary ground for non-recognition exists because [a] court of this state need not recognize a foreign country judgment if . . . the judgment or the cause of action on which the judgment is based is repugnant to the public policy of this state or of the United States (CPLR § 5304[b][3]). The Court of Appeals has long recognized that [t]he public policy inquiry rarely results in refusal to enforce a judgment unless it is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense (Sung Hwan Co. v Rite Aid Corp., 7 NY3d 78 [2006], quoting Intercontinental Hotels Corp. [Puerto Rico] v Golden, 15 NY2d 9 [1964]). In reaching this determination, the court looks to the underlying cause of action (Intercontinental Hotels Corp. [Puerto Rico], 15 NY2d at 13). Although Ma Ju challenges the motivation of the legal proceedings brought against him, it cannot be said that enforcement of a money judgment predicated upon a cause of action for breach of contract is against public policy. Thus, Ma Ju has failed to establish the existence of a discretionary ground for non-recognition pursuant to CPLR § 5304(b)(3).
Based upon the aforementioned, Plaintiffs motion for an order granting it summary judgment in lieu of a complaint based upon this courts recognition of the Foreign Judgments is granted. Upon recognition, Plaintiffs motion for an order directing entry of judgment in the amount of $12,497,607, plus applicable post-judgment interest, costs, and disbursements is also granted.
To the extent not explicitly addressed herein, this court has reviewed the parties remaining arguments and finds them to be unavailing.
Accordingly, it is
ORDERED, that Tianzhu Coal Companys motion is hereby GRANTED, in its entirety; and it is further
ORDERED, that all requests for relief not addressed herein are DENIED.
This shall constitute the decision and order of the court.
It is SO ORDERED.
Dated: August 12, 2024
Mineola, NY
HON. RHONDA E. FISCHER
A.J.S.C.
FOOTNOTES
1
. Although the High Courts restatement of facts initially cites December 25, 2008 as the date of the Transfer Agreement, this appears to be a scriveners error as the remainder of the judgment cites November 25, 2008, which is consistent with the statement of facts set forth by the Intermediate Court (NYSCEF Doc. No. 7, p. 42).
2
. The superior department in charge of the parent company of Tianzhu Coal Company (NYSCEF Doc. No. 8, p. 28).
3
. Wujan An and Gansu Tuanzhu Guasheng Coal Industry Co., Ltd. are not subject to the instant action.
4
. Initially, Ma Ju questioned jurisdiction; however, on appeal the High Court confirmed that the Intermediate Court had jurisdiction (NYSCEF Doc. No. 7, p. 28).
5
. This court notes that the Underlying Judgment bears the date of November 22, 2017; however, its accompanying notarial certificate states that it was issued on January 22, 2017 (NYSCEF Doc. No. 7, compare p. 51 with p. 52).
6
. Tianzhu Coal Company alleges that through its execution of the Enforcement Order, Ma Jus assets located in China have been insufficient to satisfy the Original Judgment, leaving a total of RMB 89,268,623 unsatisfied (valued at $12,497,607) (NYSCEF Doc. No. 4, ¶ 14).
7
. Ma Ju refers to the government by using the term Party-state. Ma Ju states that he uses this term to indicate that China is governed by a single political party (i.e., the Party) (NYSCEF Doc. No. 22, n. 2).
8
. The following recitation of facts are consistent with the account set forth in Ma Jus affidavit. This court makes no findings of fact.
9
. This court notes that Ma Ju refers to Plaintiff as Yaojie Coal; however, this court has adopted Plaintiffs reference to itself as Tianzhu Coal Company, to maintain consistency throughout this decision.
10
. Ma Ju submits a letter from Ramona Li, the UN Program Coordinator for The Network of Chinese Human Rights Defenders who asserts that Ma Ju and his fellow researchers experienced threats and intimidation following the submission of the report to the UN (NYSCEF Doc. No. 29).
11
. In June of 2021, CPLR Article 53 was amended to essentially adopt the Uniform Law Commissions 2005 Foreign Country Money Judgments Recognition Act, which replaced the 1962 version of the Act (David D. Siegel & Patrick M. Connors, New York Practice § 472 [6th ed, June 2024 update]). This act shall take effect immediately and shall apply to all actions commenced on or after the effective date of this act (2021 McKinneys Sess Laws News of NY [L 2021, ch. 127, § 10 amdg Uniform Foreign Country Money Judgments Act]).
12
. CPLR 5302(b) makes clear that [a] party seeking recognition of a foreign country judgment has the burden of establishing that this article applies to the foreign country judgment. Conversely, CPLR 5304(c) states that [a] party resisting recognition of a foreign country judgment has the burden of establishing that a ground for non-recognition stated in [CPLR 5304](a) or (b) . . . exists. The burden of proof issue was not discussed in the 1962 Act and is a new entry in Article 53 (David D. Siegel & Patrick M. Connors, New York Practice § 472 [6th ed, June 2024 update]).
13
. This court notes that Liu involves an action that was commenced prior to the CPLR Art. 53s 2021 amendments (225 AD3d at 751). Nevertheless, this court is guided by the Second Departments denial of Defendants cross-motion for summary judgment dismissing Plaintiffs 3213 motion on the basis that Defendants submission of the United States Department of States China . . . 2018 Human Rights Report was insufficient to demonstrate as a matter of law that the Chinese judgment was rendered under a system that did not comport with the requirements of due process (Id. at 752).
14
. "CPLR 5304(b)(2) previously allowed a party seeking to oppose recognition of a foreign judgment to assert that the judgment was obtained by fraud. That ground has now been clarified to mean fraud that deprived the losing party of an adequate opportunity to present its case . . . Other types of fraud could be asserted to deny recognition of a foreign judgment under other categories in CPLR 5304(a) and (b) (David D. Siegel & Patrick M. Connors, New York Practice § 472 [6th ed, June 2024 update] [internal citations omitted]).
Rhonda E. Fischer, J.