154 Misc. 2d 639 | N.Y. Sup. Ct. | 1991
OPINION OF THE COURT
Garnishee and nonparty witness Bank Leumi moves for an
Plaintiff Intercontinental Credit Corp. (ICC) seeks to enforce a judgment of more than $19 million against Roth. The judgment was recently affirmed by the Appellate Division, First Department, which also denied Roth’s motion for leave to appeal to the Court of Appeals.
In its prior motion to vacate the subpoena and notice of deposition, Bank Leumi argued that this court lacked jurisdiction to order the New York office of Bank Leumi to disclose depositors’ assets held in branches located in Israel. In addition, the bank contended that disclosure of Roth’s bank assets located in Israel would violate Israeli secrecy laws and subject the bank to civil, criminal and regulatory penalties, and that even a disclosure order issued by a New York court would not constitute a defense under Israeli law. When it became apparent that the government of Israel had a potential interest in the enforcement of secrecy laws, this court applied to the Israeli government for a statement of interest. After nearly five months, this court had received nothing from the Israeli government and concluded from the lack of response that the State of Israel did not have a strong public policy interest in the enforcement of its secrecy laws. On December 4, 1990, this court issued a decision directing Bank Leumi to comply with demands for information regarding Roth’s accounts located at Bank Leumi branches in Israel (see, 152 Misc 2d 751).
While pursuing its remedies in New York, ICC has also attempted to enforce its judgment in Israel. ICC obtained a temporary receivership order from an Israeli court relating to certain real estate owned by Roth. However, the Supreme Court of Israel recently vacated the receivership order on the ground that a "nonfinal” New York judgment cannot be enforced in Israel. It appears that Israel, under the doctrine of comity, will enforce ICC’s New York judgment when and if Roth’s appeals are exhausted. ICC, however, maintains that Roth will be able to prolong his appeals for many more months and seeks more immediate relief from this court.
In light of the foregoing, this court finds no reason to change its view regarding the applicability of Israeli secrecy laws. However, this court is compelled to reexamine its prior holding in light of Matter of Agosta (171 AD2d 595 [1st Dept]), which held that "when discovery is sought from a nonparty in a foreign jurisdiction, application of the Hague Convention * * * which encompasses principles of international comity, is virtually compulsory.” In Orlich v Helm Bros. (160 AD2d 135, 144), the Court said: "Since fact gathering is a judicially controlled process in civil law Nations * * * the nonjudicial taking of evidence located within their territory is regarded as an affront to their sovereignty. Such an exercise would be particularly offensive where, as here, the entity being subjected to the court-ordered fact gathering * * * is not even a party to the litigation.”
ICC acknowledges that relief is available under the Hague
Accordingly, the motion for renewal is granted and upon renewal, the subpoena and notice to take deposition are hereby vacated insofar as they seek disclosure regarding Roth’s bank accounts located in either Israel or elsewhere outside the United States.