absence of evidence to support the nonmoving party's case."
Celotex, supra, 477 U.S. at 325, 106 S.Ct. at 2553.
Indeed, once a motion for summary judgment is properly made,
the burden then shifts to the nonmoving party, which "must set
forth facts showing that there is a genuine issue for trial."
Anderson, supra, 477 U.S. at 250, 106 S.Ct. at 2511. The
nonmoving party "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations
B) Choice of Law
As a threshold matter, the Court is faced with a dispute
regarding the applicable law in this action. It is undisputed
that the Restructuring Agreement contains choice of forum and
choice of law provisions. Restructuring Agreement, Defendants'
Exhibit A, §§ 11.04, 11.05. Defendants assert, however, that
the Court should not give effect to those provisions, and that,
additionally, this action is controlled by 12 U.S.C. § 632, and
not by state common law.
In 1984, New York State amended its General Obligations Law
to indicate a strong policy in favor of choice of law and
choice of forum provisions. See N.Y. Gen. Oblig.Law §§ 5-1401,
5-1402. Section 5-1401 states:
The parties to any contract, agreement or
undertaking, contingent or otherwise, in
consideration of, or relating to any obligation
arising out of a transaction covering in the
aggregate not less than two hundred fifty
thousand dollars . . . may agree that the law of
this state shall govern their rights and duties
in whole or in part, whether or not such
contract, agreement or undertaking bears a
reasonable relation to this state. . . .
Prior to the passage of § 5-1401, New York courts "held that
while the parties' choice of law is to be given considerable
weight, the law of the jurisdiction with the 'most significant
contacts' is to be applied." S. Leo Harmonay, Inc. v. Binks
Manufacturing Co., 597 F. Supp. 1014, 1025 (S.D.N. Y. 1984),
citing Haag v. Barnes, 9 N.Y.2d 554, 559-60, 216 N.Y.S.2d 65,
68, 175 N.E.2d 441, 443 (1961). The passage of § 5-1401
explicitly eliminated the "contacts" analysis of choice of law
provisions in New York. "[T]he enactment of the statute now
puts beyond argument the policy question of whether New York
courts should burden themselves with litigation involving
non-residents where the only nexus is the contractual agreement
to designate New York as a forum. We have declared in no
uncertain terms that we are prepared to accept jurisdiction of
such disputes. . . . Earlier cases, which expressed reluctance
to jurisdiction based on agreement are no longer a guide."
Credit Francais International, S.A. v. Sociedad Financiera de
Comercio, C.A., 128 Misc.2d 564, 569, 490 N.Y.S.2d 670, 675-76