BSH Hausgerate GMBH v. Kamhi

Filing 60

OPINION: Based on the conclusions set forth above, Petitioner's motion to confirm the Attachment is granted, and as further set forth in this order. (Signed by Judge Robert W. Sweet on 10/18/2017) (ap)

._

_
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---------------------------------------x
BSH HAUSGERATE, GMBH,
Petitioner,

17 Civ. 5776
OPINION

-againstJAK KAMH I ,
Respondent.

---------------------------------------x
A P P E A R A N C E S:
Attorneys for Petitioner
PILLSBURY WINTHROP SHAW PITTMAN LLP
1540 Broadway
New York, NY 10036
By: Kenneth W. Taber, Esq.
Nicholas M. Buell, Esq.

Attorneys for Respondent
DAVIDOFF HUTCHER & CITRON LLP
605 Third Avenue, 34 t h Floor
New York, NY 10158
By: Larry Hutcher, Esq.
Eric J. Przybylko, Esq.

t

-

I

Sweet, D.J.

Petitioner BSH

Hausger~te

GMBH ("BSH" or the "Petitioner")

has moved pursuant to Federal Rule of Civil Procedure 64 and New
York Civil Practice Law and Rules ("CPLR")

6201, 6211, and 6212

to confirm the order of attachment dated July 31 , 20 17, as
corrected on August 3 , 2017

(the "Order of Attachment" or the

"Attachment") issued against the real property of Jak Kamhi
("Kamhi" or the "Respondent") located at 15 West 53rd Street,
Apt. 32B , New York , New York 10019 (the "Property"). Based upon
the facts and conclusions set forth below, Pet i tioner's motion
is granted.

Prior Proceedings

On October 2 , 2003, BSH and Kamhi entered into a Share Sale
and Purchase Agreement, under which BSH purchased shares in BSH
Profile Elektrikli Gerecler Sanayii A. S.

(the "SPA-BSH").

Declaration of Nicholas M. Buell dated July 28, 2017

(See

("Buell

July 28 Deel."), Ex. A.) The SPA-BSH contained an agreement to
arbitrate disputes through the International Chamber of
Commerce's International Court of Arbitration and under the
ICC's Arbitration Rules

(the "ICC").

1

(Id ., Ex. A,

CJl

10.)

On October 7, 2003, Kamhi also signed a separate Share and
Sale Purchase Agreement with another party (the "SPA-DB" ) , and
to which BSH was not a party.

(See id., Ex. B.) Like the SPA-

BSH, the SPA-DB also contained an agreement to arbitrate
disputes before the ICC and under the ICC's Arbitra ti on Rules.
(See id., Ex . B

~

5.)

On October 7, 2013 , Kamhi, one of five claimants

(the

"Cla imants") , submitted a Request for Arbitration to the I CC .
(See id., Exs. C & E.)

In the arbitration, Claimants sought

monetary and non-monetary relief based on the theory that the
termination of a distributorship agreement in 2008
to which BSH was not a party,

(the "DA"),

(see id., Ex. C), triggered an

automatic rescission that terminated the SPA-BSH agreement;
accordingly, Claimants requested either that BSH return its SPABSH shares or pay damages for allegedly causing the breach,
id., Exs. C & E

~~

(see

143-47). On January 15, 2014, BSH filed its

Answer to the Request for Arbitration, consent i ng to the
jurisdiction of the ICC.

(See id., Exs. D

~~

11-12 & E

~

10.)

During the arbitration proceedings, BSH and the other
arbitration respondents moved to have the arbitration bifurcated
as to whether (i) the DA's termination automatically terminated
the SPA-BSH and (ii) BSH caused the breach of the DA ; after
submissions, and initial denial, and a renewed motion, the
2

;

tribunal of three arbitrators (the "Arbitral Tribunal") granted
the request for bifurcation on August 11, 2015.
Eric J. Przybylko dated September 14, 2017

(Declaration of

("Przybylko Deel."),

Exs. 2-3, 7.) The Arbitral Tribunal noted that after resolving
the question of automatic termination, subsequent issues, "if
any, will be determined by the [Arbitral] Tribunal in
consultation with the Parties." (Id., Ex. 7

<JI

47 .)

On February 6, 2017, following submissions and two days of
hearings and testimony, the Arbitral Tribunal issued their
judgment, awarding BSH a money judgment against the Claimants in
the amount of:

(1) $544,230;

(2) €1,900,487.13; and (3)

interest

on those amounts under Article 4(a) of the Turkish Law No. 3095,
at the applicable rate, compounded annually, from February 7,
2017 until full and final settlement of the award (the "Final
Award").

(See Buell July 28 Deel., Ex. E

Sec. XVIII.)

<Jl<Jl

67-142, 574-79

&

Prior to rendering its decision, the Arbitral

Tribunal accepted briefing on whether a second phase would be
unnecessary if the claim regarding automatic termination was
rejected, and in its Final Award found that "no issue remains to
be determined in any second phase of the proceedings." (Id., Ex.
E

<Jl<Jl

488, 492; see id.

<Jl<Jl

457-59, 510, 515.)

3

BSH filed its petition to confirm the Final Award on July
28, 2017.

(See Dkt. No. 1.) On July 31, 2017, this Court granted

BSH's Ex Parte Application for an Order of Attachment against
the Property, which was corrected on August 3, 2017.

(Dkt. No.

3.) Title to the Property is solely in Kamhi's name, is
unencumbered, and is a rented residence.

(See Buell July 28

Deel., Exs. F, G, J.1)

On August 2 , 2017, the Sheriff for the City of New York,
pursuant to CPLR § 6216, levied upon the Property a Notice of
Attachment indorsed with the name and address of Petitioner's
attorneys and a certified copy of the Order of Attachment by
filing with the New York County Clerk.
M. Buell dated August 4, 2017
E,

(Declaration of Nicholas

("Buell Aug. 4 Deel."), Exs. C, D,

F.

BSH moved to confirm the Order of Attachment on August 4,
2017,

(Dkt. No. 23), which was heard and marked fully submitted

on September 27, 2017.
1

"The Court generally has the discretion to take judicial
notice of internet material." Boarding School Review, LLC v.
Delta Career Educ. Corp., No. 11 Civ. 8921 (DAB), 2013 WL
6670584, at *1 n.1 (S.D.N.Y. Mar. 29, 2013); see also Patsy's
Italian Rest., Inc. v . Banas, 575 F. Supp. 2d 427, 443 n.18
( E. D. N. Y. 2 008) ("It is generally proper to take judicial notice
of articles and Web sites published on the Internet."), aff'd,
658 F.3d 254 (2d Cir. 2011).
4

... ....

(

Applicable Standard

Federal Rule of Civil Procedure 64 authorizes a federal
court to seize "a person or property to secure satisfaction of
the potential judgment" in accordance with "the law of the state
where the court is located." Fed. R. Civ. P.

64. Under New York

law, Section 6201 of the N.Y. CPLR lays out the grounds for
attachment:

[a]n order of attachment may be granted in any action,
except a matrimonial action, where the p laintiff has
demanded and would be entitled
to a money
judgment against one or more defendants, when:
(1) the defendant is a nondomiciliary residing without
the state, or is a foreign corporation not qualified
to do business in the state; or
(2) the defendant resides or is domiciled in the state
and
cannot
be
personally served despite
diligent
efforts to do so; or
the
defendant,
with
intent
to
defraud
his
creditors or frustrate the enforcement of a judgment
that might be rendered in plaintiff's favor,
has
assigned,
disposed
of,
encumbered
or
secreted
property, or removed it from the state or is about to
do any of these acts; or
( 3)

(4)
the action is brought by the victim or the
representative of the v ictim of a crime, as defined in
subdivision six of section six hundred t wenty-one of
the executive law, against the person b r the legal
representative or assignee of the person convicted of
committing such crime and seeks to recover damages
sustained as a
result of such crime pursuant to
section six hundred thirty-two-a of the executive law;
or

5

(5) the cause of action is based on a judgment, decree
or order of a court of the United States or of any
other court which is entitled to full faith and credit
in this state, or on a judgment which qualifies for
recognition under the provisions of article 53.

Capital Ventures Int'l v. Republic of Arg., 443 F.3d 214, 219
(2d Cir. 2006)

(quoting N.Y. CPLR

§

6201). "Any debt or property

against which a money judgment may be enforced .
to attachment." N.Y. CPLR

§

is subject

6202.

To confirm an order of attachment, a plaintiff must show
"that there is a cause of action, that it is pnobable that the
plaintiff will succeed on the merits, that one or more grounds
for attachment provided in [N.Y. CPLR] Section 6201 exist, and
that the amount demanded from the defendant exceeds all
counterclaims known to the plaintiff." N.Y. CPLR

§

6212(a); see

Capital Ventures Int'l, 443 F.3d at 219. In addition to
determining a statutory ground for attachment, a court must
evaluate whether attachment "is needed to secure payment or
obtain jurisdiction, and it retains discretion only to the
extent that these determinations require weigh i ng of evidence
and also in balancing competing considerations i " Mishcon de Reya
N.Y. LLP v. Grail Semiconductor, Inc., No. 11 Civ. 4971
2011 WL 6957595, at *3 (S.D.N.Y. Dec. 28, 2011 )
quotation marks omitted)

(RJH),

(internal

(quoting Capital Ventures Int'l,

6

443

F.3d at 221); see also Disney Enter.,
B.V., No. 13 Civ.

6338

(E.D.N.Y. May 8, 2017)

(NG)

Inc. v.

Finanz St. Honore,

(SMG), 2017 WL 186 J 211, at *2

("[T]he party seeking a j

attachment must

show the existence of one of the two purposes o f an attachment,
either the need to secure a judgment or to obt , in
jurisdiction.u) . 2 When evaluating a motion to c o nfirm an
attachment, a district court "must give the plaintiff the

benefit of all the legitimate inferences that 1 an be drawn from
the facts pleaded.u Gentile v. Conley,

636 F. Supp. 2d 246, 251

(S.D.N.Y. 2009).

I

The Motion to Confirm the Attachment is Granted

I

In opposition to the instant motion, Resp J ndent makes three
arguments . First, Respondent contends that Petitioner has not,
for several reasons, shown a likelihood of success on the merits
as to the confirmation of the underlying arbitration award;
second, that Petitioner has not demonstrated entitlement to an
2

In addition, a plaintiff seeking an order of attachment is
required to provide an "undertakingu as security for (1) costs
and damages incurred by the defendant in the e J ent that the
court subsequently determines that the plaintiff was not
entitled to an attachment or if defendant ultimately recovers
judgment; and ( 2) certain fees incurred by the ls heriff. See N. Y.
CPLR §§ 6212(b) & 8011. The amount of the undertaking must be at
least $500 but otherwise is within the discretion of the court.
See N.Y. CPLR § 6212(b). Petitioner has already posted an
undertaking in the amount of $15, 000. (See Dkt. No. 7.)
7

attachment in the amount of $3 million; and third, that the
present circumstances warrant judicial discretion in denying the
attachment. For the reasons below, Defendants arguments are
unavailing, Petitioner has met its burden, and the instant
motion is granted.

a. Cause of Action and Likelihood of Success

First, to confirm an order of attachment, a petitioner must
show that there is a cause of action. See Mishoon de Reya, 2011
WL 6957595, at *4

(quoting N.Y. CPLR

§

6212(a)). Petitioner

seeks confirmation of the Final Award against Respondent, one of
the Claimants in the underlying arbitration. That there is a
cause of action is not disputed, and therefore this element is
met.

In greater dispute, however, is whether Petitioner has
demonstrated a likelihood of success on the merits of its
confirmation claim. Foreign arbitral awards are recognized and
enforced under the Federal Arbitration Act

(the "FAA"), which

codified the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (the "Convention"), implemented by 9
U.S.C.

§

201 et seq. See Arbitration between Oltchim, S.A. v.

Velco Chemicals, Inc., 348 F. Supp. 2d 97, 99-100 (S.D.N.Y.
8

2004). Under the Convention, contracting states like t he United
States "shall recognize arbitral awards as binding and enforce
them in accordance with the rules of procedure of the territory
where the award is relied upon." Convention art. III. "N orma ll y ,
confirmation of an arbitration award is a summary proceeding
that merely makes what is already a final arbitration award a
judgment of the court." D.H. Blair & Co. v. Gottdiener,
95, 110 ( 2d Cir. 2 00 6)

462 F.3d

(internal quotation mar J s and citations

omitted); see also Oltchim, 348 F. Supp. 2d at 100 ("The [FAA]
instructs that courts 'shall' confirm the award unless it finds
a ground for refusal or deferral of recognition or enforcement
specified in the Convention."). "Only 'a barely colorable
justification for the outcome reached' by the arbitrators is
necessary to confirm the award." Id.

(quoting Landy Michaels

Realty Corp. v. Local 32B-32J, Serv. Emp. Int'l Union,
794, 797

954 F. 2d

(2d Cir. 1992) ) .

Accordingly, the Second Circuit has held that a district
court's ability to reject an arbitration award is "strictl y
limited:

'The court shall confirm the award unless it finds one

of the grounds for refusal or deferral of recog h ition or
enforcement of the award specified in the said Convention .'"
Yusuf Ahmed Alghanim & Sons v. Toys "R" Us, Inc., 126 F.3d 15,
19 (2d Cir. 1997)

(quoting 9 U.S.C.
9

§

207). Under Article V of

the Convention , a court may refuse to recogn i ze or enforce an
arbitral award if :
were
(a) The parties to the agreement
some incapacity , or the said agreement is
under the law . . . ; or

under
valid

not

(b) The party agains t whom the award is invoked was
1
not given proper notice of the appointment of the
arbitrator or of the arbitration proceedi d gs . . . ; or
(c) The award deals with a difference not ! contemplated
by or not falling within the terms of t n e submission
to arbitration, or it contains decisionp on matters
beyond the scope of the submission to arb ~ tration ... ;
or
( d) The composition of the arbi tr a l authority or the
arbitral procedure was not in accorda rl ce with the
agreement of the parties . . . , or
(e)
The award has not yet become bi ~ding on the
parties , or has been set aside or suspended by a
competent authority of the country in wh ~ ch , or under
the law of which , that award was made .
Convention

art .

V ( 1) .

Enforcement

may

also

be

refused

if

I

" [t] he subject matter of the difference
settlement

by

enforcement

of

arbitration ,"
the

or

award would be

if

is not

capable of

"recognition

contrary

to

the

or

public

policy" of the country in which enforcement or recognition
is sought. Convention art . V(2) .

Respondent argues that Articles (V) (1) (b) and (V) (1) (d)
render the Final Award unenforceable . Specifica l ly, Respondent
presents that he was denied the opportunity to fully and fairly

10

present his case to the Arbitral Tribunal because of the
arbitration's bifurcation which resolved claims Respondent
contends were unheard and that enforcing the Final Award as
joint and several liability between Claimants violates laws
governing the arbitration.

(See Resp't's Mem. in Opp.

("Opp.

Mem.") at 12.) Neither argument countervails Petitioner's
showing of probable likelihood of success on the merits.

Under Article V(l) (b), Respondent must demonstrate that
"[t]he party against whom the award is invoked was not given
proper notice of the appointment of the arbitrator or of the
arbitration proceedings or was otherwise unable to present his
case." Convention art. V(l) (b). As the Second Circuit has found,
this provision "essentially sanctions the application of the
forum state's standards of due process." Unrvn J shprom State
Foreign Econ. Enter. v. Tradeway, Inc., No. 95 Ci v . 10278
1996 WL 107285, at *6 (S.D.N.Y. Mar. 12, 1996)

(RPP),

(quoting Parsons

& Whittemore Overseas Co., Inc. v. Societe Generale de
L'Industrie du Papier (RAKTA), 508 F.2d 969, 975 (2d Cir.
1974)). In reviewing the arbitral process, the inquiry is
"limited to determining whether the procedure used was
fundamentally unfair." Abu Dhabi Inv. Auth. v. Citigro up,
No. 12 Civ. 283 (GBD), 2013 WL 789642, at *7

11

Inc.,

(S.D.N.Y. Mar. 4,

2013)

(citing Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20

(2d Cir. 1997) ), aff'd, 557 F. App'x 66 (2d CiD. 2014).

Respondent contends that it was fundarnent 9 lly unfair for
the Arbitral Tribunal to bifurcate Claimants' l wo claims and
then, without adequate notice, conclude in its Final Award there
was no need for a second arbitration phase to adjudicate
separately Claimants' second claim.

(See Opp. Nern. at 14-15.)

Evidence proffered does not indicate a lack of adequate notice,
however. Over years of motions and briefing, RJ spondent argued
against bifurcation of Claimants' two claims and lost;
similarly, prior to the Final Award decisions, the arbitrating
parties were given the opportunity to argue whether a second
phase of arbitration was necessary based on the outcome of the
first phase, an argument that Respondent made and also lost.
I

Given the "great latitude" that arbitrators have "to determine
the procedures governing their proceedings" anfil the repeated
I

notice and opportunity to argue against the Arbitral Tribunal's
decisions-opportunities Respondent took advantage of-it is
probable that Petitioner will be able to show l he arbitrati o n
proceedings were fundamentally fair. Supreme Oi l Co. v.
Abondolo, 568 F. Supp. 2d 401, 408

(S.D.N.Y. 2008); see also Abu

Dhabi Inv. Auth., 2013 WL 789642, at *9 (rejecting fundamental
unfairness argument when "tribunal allowed [respondent] more
12

than an adequate opportunity to present eviden J e to support its
case") . 3

Under Article V ( 1) ( d) , Respondent must shqw that " [ t] he
composition of the arbitral authority or the arbitral procedure
was not in accordance with the agreement of th J parties, or,
failing such agreement, was not in accordance 1 ith the law of
the country where the arbitration took place." Convention art.
V( l) (d). Respondent argues that because the Ar, itral Tribunal's
Final Award does not specifically state that the Claimants are
joint and severally liable, to enforce such the Final Award in
such a way on him would go against legal presumptions of the
ICC, of Switzerland, the situs of the arbitration, and of

I

Turke y , the underlying agreements' governing law.

(See Opp. Mem.

at 16-19.)

3

Respondent's main authority in support, Iran Aircraft
Indus. v. Avco Corp., 980 F.2d 141 (2d Cir. 19 ~2 ), is
inapposite. In Iran Aircraft, the Second Circu i t affirmed the
denial of an arbitration award when a defendan t was informed by
one tribunal judge that a certain form of evidence was
acceptable and, later, a different tribunal jumge ultimately
rejected the claim for lack of proof without i f forming defendant
of the new evidentiary preference. See id. at 146. Here,
Respondent was given repeated notice of the Arbitral Tribunal's
intentions and opportunity to brief his positi~ns, which were
considered. (See Buell July 28 Deel., Ex. E ~~ 457-59, 510,
515.)
I

13

Respondent's Article V(l) (d) argument als t does not
demonstrate that Petitioner is unlikely to succeed on the
merits. First, as Petitioner correctly notes, under the terms of
the parties' arbitration agreement, the ICC

rules

are selected

to govern disputes, not the laws of Switzerlanl or Turkey. 4 (See
Buell July 28 Deel., Exs. Ai 10 & B i 5 ("All disputes
shall be finally settled under the Arbitration Rules of the
[ICC]

. in accordance with the said Rules.") The Final Award

decision noted the ICC's rules on awards, which expressly states
that "final award shall fix the costs of the a J bitration and
decide which of the parties shall bear them or in what
proportion they shall be borne by the parties," (Buell July 28
Deel., Ex . E i 525 (emphasis added)), and ultiJ ately found that
4

Moreover, even if a country's laws were relevant, it mostly
likely would be the law of Switzerland, as the situs of the
arbitration, not Turkey. See ICC Commission Report: Decision on
Costs in International Arbitration i 51 (available at
http://library.iccwbo.org/content/dr/commissio ~_reports /cr 0049
decisions.htm) ("It is widely accepted that the law applicable
to decisions on costs is the lex arbitri, alth©ugh some
commentators have argued that it is the law governing the
contract."); see also (Declaration of Nicholas l M. Buell dated
September 22, 2017, Ex . Ai 112 (noting that t f e arbitration's
Terms of Reference also reference the Swiss Private
International Law Act)). Although justifiably disputed,
Petitioner has put forward sufficient evidence that, under Swiss
law, it is probable that joint and several liability as to the
Final Award is implied. (See Pet.'s Reply in Fili rther Supp.
("Pet.'s Reply") at 8 n.4.) Drawing reasonable inferences in
favor of Petitioner, the application of joint and several
liabilit y here has not been established as not in accordance
with the relevant laws governing the arbitration.
14

"Claimants should bear the entirety of the cos ti s of these
proceedings," (id.

~

529-30). The Arbitral Tri j unal noted

repeatedly in its Final Award that Claimants acted as one
throughout the proceeding.

(See id.

~~

87 , 91,

96 - 97 , 101, 105,

107-08, 111-23, 128 (i)' 134 (i)' 136-40, 143-47' 543-44.)
I

As such, Respondent has not established t 1 at finding an
award of joint and several liability as to the Final Award is
necessarily inconsistent with the award procedures detailed in
the ICC rules. See Gomez de Hernandez v . Wells fargo Advisors,
LLC, No. 16 Civ. 9922 (LGS), 2017 WL 3088396, f t *4
July 20 , 20 17 )

(S.D.N.Y.

(rejecting Article V(l) (d) argu ,ent when

petitioner seeking to vacate award did not show that
"arbitration procedure deviated from the terms lof the parties'
agreement" or how any alleged deviations "prej 1 diced her in the
arbitration proceeding"). Moreover, the Final Award is not "s o
ambiguous that a court is unable to discern how to enforce it,"
so Petitioner has a likelihood of success without need to remand
I

to the Arbitral Tribunal for c larit y as to the Final Award 's
directions. Telen o r Mobile Commc 'ns AS v. Storm LLC, 351 F.
App'x 467 , 469 (2d Cir . 2009).

Lastly, in the face of these arguments,

P ~ titioner

has

presented a comprehensive and reasoned Final Al ard decision by
15

the Arbitral Tribunal, the product of years of discovery,
motions, briefing, and live witness testimony.
Buell July 28 Deel., Ex. E.)
in Petitioner's favor,

(See generally

Drawing all legit J mate inferences

Petitioner has demonstr J ted that it is

more likely than not that it will succeed on i 1 s claim. See
Agrera Investments Ltd. v. Palant, No. 13 Civ. 8721
WL 4958075, at *3

(S.D.N.Y . Oct. 3, 2014)

(KPF), 2014

I

(finding a "colorable

basis" existed to support confirmation of a fo 1 eign award when
there was "document discovery, conducted a hea j ing during which
witnesses testified, considered post-trial bri J fing from both
sides, and ultimately issued a reasoned decision that weighed
both parties' positions") . Accordingly, this element is
satisfied.

b. Ground of Relief under N.Y. CPLR

A petitioner seeking confirmation of an attachment order

must also demonstrate that a ground for attachl ent under N.Y.
CPLR § 6201 exists. See N.Y. CPLR 6212(a). Petitioner has
justified the instant motion under Section 6201(a), that "the
defendant is a n o ndomiciliary residing without

CPLR

§

he state." N.Y.

6201(a). Petitioner has presented evidenr e that

Respondent is a Turkish national domiciled outs t de the state of
New York.

(See Buell July 28 Deel., Exs. C & E.)
16

Resp o ndent has

not disputed this. See (Opp. Mem. at 22) ; Olsh J,n Grundman Frome
Rosenzweig & Wolosky LLP v. Jeglitza, No. 00 Civ. 1140 (JGK),
2000 WL 420557, at *3 (S.D.N.Y. Apr. 18, 2000)

("Here, this

requirement is plainly met because the respond, nts, who reside
in Germany, are non-domiciliaries residing outside New York").
Accordingly, this element is satisfied.

c. Amount of Counterclaims

Section 6212(a) requires that the amount

d~manded

from a

respondent exceed all counterclaims known to a petitioner.
Respondent contends that Petitioner's request for an attachment
of the Property amounting to approximately $3 million is
unjustified based on the judgment against him w ich Respondent
argues either is unenforceable, mathematically 'naccurate, or,
at most, only one-fifth of the total Final Award amount because
of the remaining Claimants.

These arguments fail at present. As to the interest rate
calculations, Petitioner has adduced evidence that it is
entitled under the Final Award and Turkish inte best rates to
approximately $3 million and for which, as described above,

I

Respondent is arguably joint and severally liable,

(see

Declaration of Nicholas M. Buell dated Septembe l 22, 2017
17

("Buell Sept. 22 Deel."), Exs. D-F); taken togJ ther, this is

sufficient to demonstrate "a likelihood of rec, vering any
specific amount of damages." Chevron Corp. v . Qonziger, 840 F.

Supp. 2d 773, 776 (S.D.N.Y. 2012) . 5 As

Responde~t

has neither

argued nor put forward evidence of counterclaim1 to Petitioner,
s
u
and Petitioner claims not to be aware of any col nterclaims,
Pet.'s Mem. in Supp.

(see

("Pet.'s Mem.") at 8), the amount of the

Final Award likely to be recovered by Petitione k from Respondent
exceeds the amount of known counterclaims. See

-

~itgo
I

Petro.

Corp. v . Panther Oil Corp., No. 97 Civ. 1121 (Su), 1997 WL
168589, at *2

(E.D.N.Y. Apr. 3, 1997). Accordin1 ly, this element

is satisfied.

d. Necessity

Lastly, to warrant an attachment, a

petiti ~ ner

must

I

,

demonstrate that "that attachment is necessary nor security
purposes-that is, whether 'there exists a real J hreat to [a
petitioner's] ability to enforce a judgment aga'nst [a
5

The parties dispute the precise value of Petitioner's
award, principally based on disagreements as hoJ~ to calculate
application of the prevailing interest rates un er Turkish law.
(See Opp. Mem. at 21-22 & n.4; Pet.'s Reply at 9 & n.5.) As no
known counterclaims exist and Petitioner has demp nstrated a
likelihood of recovering a specific damage amounf greater than
the counterclaims, the precise value of the award need not be
resolved now to confirm the attachment.
18

•
J

respondent]

. , so as to justify the drastlc remedy of pre -

judgment attachment." Herzi v. Ateliers De La J aute-Garonne , No.
15 Civ . 7702

I

(RJS), 2015 WL 8479676, at *2 (S.ID . N. Y. Oct. 13,

I

2015); see also Capital Ventures Int'l, 443 F . l d at 222 .
Respondent argues that attachment is unnecessary both for
jurisdictional purposes , because Respondent has voluntarily
appeared in this action , and for monetary security

I

as
I

Respondent contends that Petitioner has not shown that

I
Respondent is avoiding a legitimate debt .

Necessity has been established here . Respondent's waiver of
I

service and notice of appearance do not themselves confer
jurisdiction over Respondent. See Fed . R. Civ . P . 4 (d) (5) ;
-

I

Pacnav S.A . v . Effie Bus. Corp. , No . 06 Civ . 1]512 (JGK), 2010
WL 2102714 , at *2 (S.D . N. Y. May 20 , 2010)

(noting that a party

can object to personal jurisdiction "at any time before the
answer is filed or in the answer " ). More importantly, while no
evidence has been adduced indicating that

Resp~ndent

would be

unable to satisfy any judgment from the Final f ward , Petitioner
has represented that , aside from the Property, Respondent's
assets are outside New York , a fact that Respo h dent has not
contested ,

(see Opp . Mem . at 23), and Responde f t has recently

placed the Property for sale,

(see Declaration of Nicholas M.

Buell dated October 13 , 20 1 7 ("Buell Oct. 13 Dl cl . "), Ex . B) . As
19

1

•

such, even if jurisdiction were already established,
confirmation would still be appropriate to ens re a
nondomiciliary does not "render itself judgment-proof in this
jurisdiction." Herzi, 2015 WL 8479676, at *3;

s~e

also ITC

Entm't, Ltd. v. Nelson Film Partners, 714 F.2d Q17, 220 (2d Cir.
1983)

(holding that Section 6201 "continues to countenance

attachments against nonresidents when appropriate to secure the
judgment, even when unnecessary to secure juris1 iction")
Accordingly, this element is satisfied.

20

Conclusion

Based on the conclusions set forth above , Petiti o ner ' s
motion to c o nfirm the Attachment is granted .

It is so ordered .

New York , NY
October

f Y'

RT \ . SWEET
w
U. i .D . J.

2017

I

21

.
r