Swezey v. Lynch

Catterson, J. (dissenting).

I must respectfully dissent because I disagree with the majority’s view that the principle of international comity requires this Court to assert sovereign immunity on behalf of a foreign sovereign. The majority frames this action as one where the Republic of the Philippines has “declin[ed] to waive its immunity.” That assessment is inaccurate. It simply cannot be disputed that the Republic has declined to appear to assert its immunity.

The ambassador of the Republic, in a letter dated July 13, 2009 to the Department of State, and copied to the motion court stated only that “neither the Republic nor the Commission intends to intervene or appear in the New York State Court Litigation.” The ambassador referenced the United States Supreme Court decision, Republic of Philippines v Pimentel (553 US 851 [2008]), a federal interpleader action in which the Republic and the Commission were named as defendants. He wrote: “[a]s the [United States] Supreme Court explained ‘where sovereign immunity is asserted, and the claims of the sovereign are not frivolous . . . dismissal of the action must be ordered.’ ”

The majority, in order to bolster its determination, cites to the same section of Pimentel. Yet, the majority cannot avoid the obvious fact that the Republic has not asserted sovereign immunity in this case. Indeed, the majority, throughout its writing characterizes the Republic’s non-action as the Republic “declin[ing] to waive” its sovereign immunity. This is sophistry since the Republic’s non-action may only be described as declining to assert sovereign immunity.

To dismiss a turnover proceeding when the foreign sovereign who asserts a claim in the assets has neither appeared nor intervened nor asserted sovereign immunity on its own behalf not only defies logic, but is not supported by any legal authority. On the contrary, the ruling of the Philippine court which indisputably has no in rem jurisdiction over the assets cannot change the statutory scheme which, as set forth below, gives the petitioner and class priority in any turnover proceeding against the Arelma assets.

As petitioner correctly contends, to dismiss this proceeding by attributing sovereign immunity to the Republic is to allow the interveners to parlay the Republic’s shield of immunity from *137litigation and liability into a sword to preclude a judgment creditor from exercising her right to garnish assets that are held in New York. As such, in my opinion, it is an offensive use (in both meanings of the phrase) of the privilege of sovereign immunity. It is nothing more than an affirmative act to defeat any claims of the victim class whom the Republic purports to support, but whose every avenue for recovery it bars.

The following facts are undisputed: In 1972, Ferdinand Marcos, then President of the Republic of the Philippines, created Arelma, Inc., a Panamanian corporation, now one of the intervenors in the instant action. Subsequently, Arelma established a securities account at the New York office of respondent Merrill Lynch, Pierce, Fenner & Smith, Inc. with a deposit of $2 million.

In 1986, the Republic, through its Presidential Commission of Good Government (hereinafter referred to as PCGG), commenced several actions to recover the assets which Marcos allegedly obtained through the misuse of his office. In the same year, a class of human rights victims (hereinafter referred to as the victim class or the class), of which petitioner is a member, commenced a separate action seeking a judgment for damages for human rights violations rendered by Marcos and his regime. This action was initiated in the federal courts in Hawaii where Marcos then resided. Among the Marcos properties targeted by both the Republic and the victim class was Arelma and its assets.

The Republic, nevertheless, filed an amicus curiae brief in the victim class action, and appeared to support the rights of the victim class to recover against the Marcos estate. Before the Ninth Circuit, the Republic argued that the victim class should be allowed to present their “evidence of gross human rights violations against . . . Marcos.” The Republic stated “without hesitation or reservation” that its foreign relations with the United States “will not be adversely affected if these human rights claims are heard in U.S. courts.” It further noted that “[t]he Philippine Government has previously expressed its deep concern . . . about the need for a just solution to the present suits” of the victim class against Marcos.

In 1995, the class obtained a federal judgment against the Marcos estate in the amount of $1.9 billion. The class eventually registered the judgment in the U.S. District Court for the Northern District of Illinois on January 23, 1997, after it was affirmed by the Ninth Circuit. Meanwhile, PCGG asked Merrill *138Lynch to turn Arelma’s assets over to the Philippine National Bank (hereinafter referred to as the PNB) to be held in an escrow account pending a ruling by the Sandiganbayan, a Philippine court with special jurisdiction over corruption cases.

Faced with competing claims for the Arelma assets, Merrill Lynch filed an interpleader action in 2000 naming the Republic, PCGG, Arelma, the PNB and the class as defendants. The Republic and PCGG asserted sovereign immunity and moved to dismiss the interpleader pursuant to Federal Rules of Civil Procedure rule 19 (b) on the grounds that they are required parties and the action cannot proceed without them. Subsequently, in 2008, the Supreme Court ruled in their favor and dismissed the interpleader. (Republic of Philippines v Pimentel,1 553 US 851 [2008], supra.)

In 2009, the class filed the federal judgment with the Clerk of New York County as well as an Illinois state court. It then registered the Illinois state judgment with the Supreme Court of the State of New York. On April 3, 2009, the Sandiganbayan ruled that the assets of Arelma2 including the account at Merrill Lynch (last valued in 2000 at more than $35 million) — had been forfeited to the Republic of the Philippines.3 This decision has been appealed to the Philippine Supreme Court.

On or about the same day, the petitioner commenced this proceeding pursuant to CPLR 5225 (b) and 5227. She sought (1) a declaration that all property held by Merrill Lynch for Arelma was the property of the Marcos estate and (2) a turnover order requiring Merrill Lynch to transfer the assets in the Arelma account to the class action settlement fund maintained by the United States District Court for the District of Hawaii.

Merrill Lynch moved to dismiss the petition pursuant to CPLR 1001 (b) and 3211 (a) (10), noting that the petitioner failed to name, among others, Arelma, the PNB, the Republic and PCGG as claimants to Arelma’s account. Arelma and the PNB moved to intervene and dismiss also on the ground that petitioner had failed to join necessary claimants, and additionally alleged that the class could not enforce their judgment in *139New York. The Philippine ambassador to the United States submitted a letter to the court stating that neither the Republic nor PCGG intended to intervene or appear in the New York litigation.

The court granted the motion to intervene by Arelma and the PNB (hereinafter referred to as the intervenors), but denied both the intervenors’ and Merrill Lynch’s motions to dismiss. (2009 NY Slip Op 32650[U].) The court found that, under CPLR 5225 and 5227, petitioner is not required to join rival claimants to the assets as respondents.

The court further held that Republic and PCGG are necessary parties, but since the Republic and PCGG voluntarily chose not to participate in the proceeding, and their participation was not necessary to render an effective judgment, the court refused to dismiss for failure to join necessary parties. Further, the court held that the judgment of the class was entitled to full faith and credit since it was valid and conclusive in Illinois at the time it was registered in New York. Since then, Merrill Lynch, by consent order, has deposited the Arelma assets with the Commissioner of Finance of the City of New York, and has been discharged from liability to any party to this proceeding.

Now, the intervenors appeal the portion of the decision that denied their motion to dismiss the proceeding. They invoke the United States Supreme Court decision in the interpleader action, but correctly do not argue that it is controlling in this case, only that it is entitled to “great weight.”

They argue instead that pursuant to CPLR 1001 (b) the Republic is a necessary and indispensable party to the turnover proceeding because it is a foreign sovereign that has asserted claims to the Arelma assets. Moreover they argue that the turnover order sought by the petitioner is “flatly” inconsistent with the Republic’s interest in the assets because it would consume the entire account. Further, because the Republic’s sovereign immunity renders it immune from jurisdiction of New York courts, the intervenors argue that pursuant to CPLR 1003 nonjoinder of the Republic is grounds for dismissal of the proceeding. They contend that allowing the action to proceed deprives the Republic of the substantial benefits of sovereign immunity, and in effect, presents it with a Hobson’s choice between waiving its sovereign immunity or waiving its right not to have the case proceed without it.

In my opinion, this is not a valid assertion of sovereign immunity. Indeed, the Court of Appeals rejected an attempt by the *140St. Regis Mohawk Tribe to wield sovereign immunity in a similar fashion. (See Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801 [2003], cert denied 540 US 1017 [2003].) In that case, the Court refused to dismiss pursuant to CPLR 1003 even though the St. Regis Mohawk Tribe, considered an indispensable party, asserted sovereign immunity. The Court stated:

“The Tribe has chosen to be absent. Nobody has denied it the ‘opportunity to be heard’ . . . While sovereign immunity prevents the Tribe from being forced to participate in New York court proceedings, it does not require everyone else to forego the resolution of all disputes that could affect the Tribe. While we fully respect the sovereign prerogatives of the Indian tribes, we will not permit the Tribe’s voluntary absence to deprive these [Petitioners] (and in turn any member of the public) of their day in court.” (100 NY2d at 820-821 [citations omitted].)

Similarly in this case, the Republic’s absence is voluntary; the Republic was not denied the opportunity to intervene; it simply declined to do so, with the expectation that by asserting sovereign immunity as a necessary party, the court would be obligated to dismiss this turnover proceeding, and deprive the class of the benefit of its judgment.

In Saratoga County, the Court unequivocally underscored the principle that dismissal pursuant to CPLR 1001 (b) and 1003 on the grounds of failure to join a necessary party is discretionary, not mandatory, even when the party is a sovereign entity. Hence, in my opinion, the motion court properly exercised its discretion under CPLR 1001 (b) by considering the five factors set forth in that provision to determine whether the action should proceed despite the necessary party’s absence. (See Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. & Appeals, 5 NY3d 452, 459 [2005]; see also L-3 Communications Corp.v SafeNet, Inc., 45 AD3d 1, 10-11 [1st Dept 2007].)

Specifically, the motion court found, as did the Court in Sara-toga County, that the first factor enumerated in CPLR 1001 (b) tipped the balance in favor of the petitioner since dismissal would leave it without an alternative remedy and no alternative forum which could produce an all-inclusive resolution as to entitlement to the assets. (See Saratoga County, 100 NY2d at 819-820 [Court agreed with the plaintiffs that no remedy would exist if the Tribe’s absence required a dismissal; this tipped the *141scales in their favor].) Dismissal is particularly disfavored when the plaintiffs would be left without a remedy. (L-3 Communications Corp.v SafeNet, Inc., 45 AD3d at 11.)

The majority makes much of the fact that there was a constitutional issue at stake in Saratoga County, and posits that this was the reason the Court rejected the idea of dismissal on the basis of nonjoinder. In my view, that is incorrect. The Court held that “[n]ot only will these plaintiffs be stripped of a remedy . . . but no member of the public will ever be able to bring this constitutional challenge.” (100 NY2d at 820.)

First, a “not only . . . but [also]” construction indicates two important reasons, but does not mandate that both must exist in a finding for petitioner. Second, the Court’s initial concern was not with the type of violation suffered, but that no remedy would exist for the subject plaintiffs — or any future plaintiffs — if the Tribe’s absence required dismissal. Certainly, the Court did not indicate that any future analysis as to the first factor enumerated in CPLR 1001 (b) would have to be a two-prong one in which a court must find not only that no alternative remedy exists, but that the violation suffered by plaintiff, say, for example, a human rights violation, is of equal weight to a constitutional violation.

In this case, the class has been barred from litigating its claims in the Philippines.4 The Republic has consistently ignored the ruling of the United Nations Human Rights Committee that it is under an obligation to ensure an adequate remedy to the class members. Thus, 15 years after securing a judgment against the Marcos estate, the class is no closer to collecting on its award, due, in no small measure, to the efforts of the Republic.

Moreover, in considering the second of the CPLR 1001 (b) factors, the prejudice to the Republic in an action in which it is absent, the motion court correctly held that voluntary absence cannot be transmogrified into prejudice. Justice Stevens effectively made the same observation in the federal interpleader action when he noted that the risk of unfairness in conducting proceedings without the participation of the Republic and PCGG *142is one that can be avoided by waiving sovereign immunity, and “the sovereign interest implicated here is not of the same magnitude as when a sovereign faces liability.” (Pimentel, 553 US at 878 [Stevens, J., concurring in part and dissenting in part].)

In my opinion, the motion court’s conclusion that the equities weigh against dismissal on the basis of nonjoinder was a proper exercise of discretion adhering to New York’s strong policy of viewing dismissal as a last resort. (See Saratoga County, 100 NY2d at 821; see also Red Hook/Gowanus Chamber of Commerce, 5 NY3d at 459; Eclair Advisor Ltd. v Jindo Am., Inc., 39 AD3d 240, 245 [1st Dept 2007].)

Nor is the motion court’s conclusion contrary to the holding of Pimentel. In that case, the United States Supreme Court, while finding that the courts below had not given “sufficient weight to the likely prejudice to the Republic and the Commission [PCGG] should the interpleader proceed in their absence,” nevertheless cautioned: “The balance of equities may change in due course.” (Pimentel, 553 US at 872-873.) According to the Court, one such change could occur “if it appears that the Sandiganbayan cannot or will not issue its ruling within a reasonable period of time.” (553 US at 873 [emphasis added].) In this case, while the Sandiganbayan did make a ruling in favor of the Republic one year after the Supreme Court’s Pimentel decision, a further two years have elapsed while the case languishes on appeal in the Philippine Supreme Court.

In any event, the Supreme Court contemplated that the Republic would have to submit to the jurisdiction of a state or federal court at some point, and not just as a pro forma plaintiff. The Court observed, “If the ruling is that the Republic and the Commission own the assets, then they may seek to enforce a judgment in our courts; or consent to become parties in an interpleader suit, where their claims could be considered.” (Id. [emphasis added].)

More significantly, the United States Supreme Court’s observation is an acknowledgment that, even if the foreign court rules that the Republic is the owner of the assets, and has been since their misappropriation, the Republic is not likely to be able to transfer those assets to its own accounts, or change the name on the current accounts, simply by sending its ambassador to Merrill Lynch (or the City’s Finance Commissioner) with the court’s order and a note informing the bank it must do so immediately.

*143Instead, the Court surmised that “if and when Merrill Lynch refuse[s] to hand over the assets,” the Republic might file suit for breach of contract. (Pimentel, 553 US at 868.) Or Merrill Lynch or other parties could “elect to commence further litigation in light of changed circumstances.” (Pimentel, 553 US at 873.) Certainly, in the first scenario, the Republic would find itself in the position of submitting to the jurisdiction of our courts to litigate its claim — as it has previously done in its pursuit of recovery of Marcos assets. (See e.g. Sotheby’s, Inc. v Garcia, 802 F Supp 1058 [SD NY 1992]; New York Land Co. v Republic of Philippines, 634 F Supp 279 [SD NY 1986], affd 806 F2d 344 [1986], cert denied 481 US 1048 [1987].)

It is indisputable that the Philippine Supreme Court does not have in rem jurisdiction over the Arelma assets in the Merrill Lynch account located in New York. Hence, its determination will not automatically transform the Republic into the owner of the Arelma account. The Philippine court may render only a money judgment for the Republic in the amount (or, more accurately, the sum) of the Arelma assets subsequent to which the Republic may seek to convert it into a New York judgment and enforce it against the Arelma assets by a turnover proceeding. (See CPLR 5301, 5303.) Consequently, the Republic is a judgment creditor, nothing more.

Again, the Supreme Court decision does not reflect a different view. It observed that upon a Philippine court ruling that the Republic and Commission own the assets, “then they may seek to enforce a judgment in our courts ... or file in some other forum if they can obtain jurisdiction over the relevant persons.” (Pimentel, 553 US at 873 [emphasis added].) In other words, contrary to the majority’s view, they would be seeking to enforce a money judgment of a “sum of money.” Finally, in New York, just as there is no mandatory joinder of necessary parties in general civil actions pursuant to CPLR 1001 (b), there is no duty on the part of the petitioner and the class to join other claimants or potential judgment creditors or even the judgment debtor in an execution proceeding on a money judgment pursuant to CPLR 5225; joinder is permissive, not mandatory, and left to the court’s discretion. (See Koehler v Bank of Bermuda Ltd., 12 NY3d 533, 537-538 [2009].) Moreover, because the class was the first judgment creditor to file and seek to levy against the assets, the class has priority and is entitled to seek satisfaction of its valid judgment. (See CPLR 5234 [b].)

To hold otherwise, would allow any foreign government to delay, even stymie, the efforts of legitimate domestic judgment *144creditors by alluding to the privilege of sovereign immunity while claiming ownership of assets located in New York based simply on the exercise of personal jurisdiction over the person or entity who owns the assets. No precedent or statute provides for this extraordinary relief to a foreign sovereign. Under such a scheme, sovereign immunity hypothetically would allow any unstable foreign sovereign to put an American visitor on trial, fine him/her millions of dollars for some perceived transgression against the state and then claim ownership of the citizen’s house and other assets in the United States simply by sending a letter informing a New York court of the judgment. The majority’s holding would permit a foreign sovereign this extra territorial in rem relief without having it tested before any court in New York.

For the foregoing reasons, I would affirm the motion court’s judgment in its entirety.

Andreas, J.E, McGuire and Román, JJ., concur with Friedman, J.; Catterson, J., dissents in a separate opinion.

Judgment, Supreme Court, New York County, entered November 16, 2009, reversed on the law and the facts, the motion granted pursuant to CPLR 3211 (a) (10), without costs, and the proceeding dismissed without prejudice.

. Pimentel, the class representative, died during the appeals process and was replaced by the petitioner Swezey.

. Some Arelma assets were transferred from Switzerland in 2000 into an escrow account at the PNB.

. “[A] 1955 Philippine law providfes] that property derived from the misuse of public office is forfeited to the Republic from the moment of misappropriation.” (Pimentel, 553 US at 858.)

. Although five members of the class attempted to seek enforcement of its judgment against other property of the Marcos estate in the Philippines, that action was dismissed for the failure to pay a $8.4 million filing fee. The class moved for a determination that a smaller filing fee was sufficient, and that motion remained pending for five years. While it was pending, the same Philippine court entered judgment for the Republic that the Marcos property at issue be forfeited to it.