Sung Hwan Co. v. Rite Aid Corp. — 150 A.D.3d 594

Majority

p. 594

Sung Hwan Co., Ltd., Appellant, v Rite Aid Corporation, Respondent.

[52 NYS3d 627]

Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered March 2, 2015, after a nonjury trial, dismissing the complaint, unanimously affirmed, without costs.

In this action pursuant to CPLR article 53 to enforce a foreign money judgment, plaintiff had the burden of establishing jurisdiction (Venegas v Capric Clinic, 147 AD3d 457 [1st Dept 2017]; Derso v Volkswagen of Am., 159 AD2d 937 , 938 [4th Dept 1990]). On the record before us, we cannot conclude that Supreme Court erred in determining that plaintiff failed to do so. Specifically at issue was whether defendant operated

p. 595

or controlled an ice cream factory owned by a subsidiary that allegedly supplied listeria-tainted ice cream to plaintiff in South Korea. The record does not support a conclusion that Supreme Court erred in determining that defendant did not operate or control the ice cream factory directly or through a subsidiary acting as a “department” of defendant (see Volkswagenwerk AG. v Beech Aircraft Corp., 751 F2d 117 , 120 [2d Cir 1984]). Moreover, neither could apparent authority give rise to jurisdiction over defendant here.

Plaintiff relies upon cases from across the country involving defendant. We have reviewed these cases and find them inap-posite. We have also considered plaintiff’s remaining arguments and find them unavailing.

Concur—Sweeny J.P., Renwick, Andrias and Manzanet-Daniels, JJ.

Cases cited

Venegas v. Capric Clinic 147 AD3d 457 N.Y. App. Div. 2017-02-07 p. 594
Derso v. Volkswagen of America, Inc. 159 AD2d 937 N.Y. App. Div. 1990-03-16 at 938 p. 594