SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

Transcription

1 FILED: NEW YORK COUNTY CLERK 01/27/ :30 PM INDEX NO /2016 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 01/27/2016 Warren E. Gluck Elliot A. Magruder HOLLAND & KNIGHT LLP 31 West 52nd Street New York, New York Telephone: ( Telefax: ( warren. gluck@hklaw. com elliot.magruder@hklaw.com Attorneys for Plaintiff Cerner Middle East Limited SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CERNER MIDDLE EAST LIMITED Plaintiff, Index No. -against- ICAPITAL L.L.C. AMRO AL-DEEB Defendants COMPLAINT FOR RECOGNITION AND ENFORCEMENT OF FOREIGN MONEY JUDGMENT Plaintiff Cerner Middle East Limited ("Cerner" or "Plaintiff, by and through its attorneys, Holland & Knight LLP, as and for its complaint (the "Complaint" against defendants icapital L.L.C. ("icapital" and Amro Al-Deeb ("Deeb" (collectively, "Defendants", alleges as follows:

2 THE PARTIES, JURISDICTION AND VENUE 1. This is an action pursuant to Article 53 of the Civil Practice Law and Rules (the "CPLR" for recognition and enforcement of a foreign country money judgment that was issued in favor of Cerner by the Abu Dhabi Court of First Instance, First Commercial Plenary Circuit, in the United Arab Emirates (the "UAE" and upheld by the Abu Dhabi Court of Appeals against the Defendants, in the final amount of 14,070, Emirati Dirhams ("AED", which corresponds to approximately USD $3,831, At all times relevant hereto, Plaintiff Cerner is and was a foreign business entity incorporated and organized under the laws of the Cayman Islands and operating in the UAE. 3. At all times relevant hereto, Defendant icapital is and was, upon information and belief, incorporated and organized under the laws of the UAE. icapital operated from CI Tower, Al Bateen Abu Dhabi, United Arab Emirates and maintained a registered address at P.O. Box 37148, Abu Dhabi, United Arab Emirates. 4. At all times relevant hereto. Defendant Deeb is and was the Chairman of the Board of Directors of icapital residing in the UAE. 5. Personal jurisdiction is not a requisite element in CPLR Article 53 foreign country judgment recognition actions such as this. See generally CPLR 5305; David D. Siegel, 2001 Practice Commentary to CPLR 5305, C5305:l; see also Lenchyshyn v. Pelko Electric, Inc., 281 A.D.2d 42, 49-50, 723 N.Y.S. 2d 285 (4th Dep't 2001 (holding that "(i]n proceeding under article 53, the judgment creditor does not seek any new relief against the judgment debtor, but instead merely asks the court to perform its ministerial function of recognizing the foreign country money judgment and converting it into a New York judgment"; Abu Dhabi Comm. Bank v. Saad Trading, Contracting and Fin. Servs. Co., 117 A.D.3d 609, , 986 N.Y.S. 2d 454 (1st Dep't 2014

3 (finding that recognition of a foreign money judgment is a ministerial act that does not require personal jurisdiction over the foreign judgment debtor and quoting Lenchyshyn; 6. Venue is proper in this county on the basis of CPLR 503(a, as this county is designated by Plaintiff and no other provision is applicable. REQUEST FOR RECOGNITION OF PLAINTIFF'S JUDGMENT AGAINST THE DEFENDANTS 7. This Complaint seeks recognition and enforcement of a money judgment arising out of the breach of a contract between Plaintiff and Defendants, the subsequent breach of a settlement agreement in relation to that contract and the furnishing of an insufficient funds check by Defendants to Plaintiff. 8. Cerner and icapital entered into an agreement whereby Cerner would provide medical technology services to icapital. icapital breached the agreement by failing to make the required payments. 9. On December 18, 2012, the parties agreed to settle this dispute via an installment payment agreement, in which the Defendants were to repay the Plaintiff by April 25, 2013 (the "Settlement Agreement". 10. On April 25, 2013, the icapital delivered Cerner a check in the amount of AED 34,750,490.37, drawn on the account icapital at Royal Bank of Scotland. However, when the Plaintiff attempted to cash this check, it was returned due to insufficient funds. 11. Cerner filed suit on September 18, 2013 in the Abu Dhabi Court of First Instance, First Commercial Plenary Circuit (the "Plenary Court", Case No 2481, requesting (1 the AED 34,750, outstanding under the Settlement; (2 interest on the Settlement accruing at 12% per annum; (3 AED 5,000,000 in material and emotional damages; (4 case-related charges and

4 expenses; and (5 attorneys' fees (the "Plenary Petition". The Plenary Court noted that the Plenary Petition was properly served on the Defendants. 12. Cerner filed a separate petition in the same court, Case No. 2612, on September 30, This petition requested a ruling affirming the validity of Cemer's provisional seizure of icapital assets held by third parties. 13. At a hearing on November 11, 2013, counsel for icapital requested a stay of the Plenary Petition in light of a contemporaneous arbitration in the International Chamber of Commerce International Arbitration Court ("ICC". icapital also argued that it had already paid the Plaintiff AED 20,680, The Plenary Court concluded Cerner had satisfied all three elements for breach of contract and payment due and as evidenced by a check under UAE law, "there is legal proof that he has received a right that he is owed by the check writer." As such, Defendants were "liable, and that the Plaintiff is entitled to compensation." The Plenary Court further found that the disputes before it and the ICC were merely related, not identical. 15. On May 27, 2014, the Plenary Court issued a judgment for the Plaintiff in the amount of AED 17,750, plus interest at a rate of 5% per year, running from April 25, 2013 (the "Plenary Court Judgment". It also awarded the Plaintiff AED 200,000 in emotional damages and attorneys' fees, and upheld the seizure petition. A true and correct copy of the Plenary Judgment, and a certified English translation thereof, is attached hereto as Exhibit The Defendants appealed the Plenary Court Judgment. 17. On December 23, 2014, the First Commercial Appellate Circuit of the Abu Dhabi Court of Appeals in the UAE upheld the liability determination in the Plenary Judgment (the "Appellate Judgment", but modified the damages downward to AED 14,070, in principal

5 damages and AED 150,000 in emotional damages and fees. A true and correct copy of the Appellate Judgment, and a certified English translation thereof, is attached hereto as Exhibit 2 (collectively with the Plenary Judgment, the "UAE Judgments". The Appellate Judgment also maintained the Plenary Court's interest award and upheld the validity of the provisional seizure. 18. All requirements for this Court to recognize the UAE Judgments against Defendants that awarded Cerner money damages are satisfied here. WHEREFORE, Plaintiff respectfully requests that this Court enter an order pursuant to New York's Uniform Foreign Money Judgments Recognition Act, codified in New York's CPLR Article 53 - Recognition of Foreign Country Money Judgments, recognizing and enforcing the UAE judgments, and enter a judgment against defendants in an amount not less than $4,350, which represents (i principal UAE Judgments damages in the amount of USD $3,831, (AED 14,070,490.37, (ii the UAE Judgments interest in the current amount of USD $478,882.46, and (iii the emotional damages and fees award in the amount of USD $40,500 (AED 150,000, and any and all other relief that it deems just and proper. Dated: New York, New York January 27, 2016 HOLLAND & KNIGHT LLP By: Warren E. Gluck Elliot A. Magruder 31 West 52nd Street New York, New York Phone: ( Fax: ( warren, com elliot.magruder@hklaw.com Attorneys for Plaintiff Cerner Middle East Limited