Case of the Day: Assoun v. Assoun

The case of the day is Assoun v. Assoun (S.D.N.Y. 2015). The parties, Yan Assoun and Anais Assoun, were former spouses who lived in England after their divorce. Anais petitioned the High Court in London to increase the amount of child support and spousal support Yan was required to pay. The court granted the petition and ordered Yan to pay $380,000 per year in spousal support, $25,000 per child per year in child support, retroactive child and spousal support, and £ 234,622 in attorney’s fees. Yan believed that Anais had misstated her own finances, either fraudulently or negligently, in the English court. After Anais registered the English judgment with the New York Family Court, Yan asked the Family Court to vacate the registration. He also brought an action for fraudulent or negligent misrepresentation in the New York Supreme Court. Anais removed the action to the federal court and moved to dismiss for failure to state a claim.

The magistrate judge granted the motion. Under New York’s doctrine of comity, the English judgment was entitled to be recognized unless it was contrary to public policy or was obtained by extrinsic fraud. Here, the supposed fraud was clearly intrinsic fraud, since the only misstatements alleged were misstatements made to the English court. The magistrate judge recognized—citing Chevron v. Donziger—that New York law was at least ambiguous about whether one could collaterally attack a foreign judgment in a case of intrinsic fraud by suing in equity, but she held that New York law did not allow a collateral attack on a foreign judgment in a case of intrinsic fraud by bringing an action for damages unless the plaintiff can allege that the fraud was “merely a means to the accomplishment of a larger fraudulent scheme.” But there was no such allegation here. The magistrate judge went on to analyze the claim for negligent misrepresentation and explained that no such claim was available under New York law. But it seems to me that if fraud is not actionable in this context, then a fortiori a negligent misrepresentation cannot be actionable, either.

Yan did not object to the magistrate judge’s report and recommendation, and the district judge adopted it, finding no clear error.

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