NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
May 5, 2009
SKILLED INVESTORS, INC., PLAINTIFF,
BANK JULIUS BAER & CO., LTD., ET AL. DEFENDANTS.
BANK JULIUS BAER & CO., LTD., PLAINTIFF-APPELLANT, BERNARD SPILKO, PLAINTIFF,
BARUCH IVCHER, ET AL., DEFENDANTS-RESPONDENTS, MENACHEM IVCHER, ET AL., DEFENDANTS.
Order, Supreme Court, New York County (Helen E. Freedman, J.), entered June 3, 2008, which, to the extent appealed from, upon reargument, denied the motion of defendant/cross-claim plaintiff Bank Julius Baer & Co. Ltd. (the bank) for partial summary judgment against defendants/cross-claim defendants Baruch Ivcher and Waxfield Limited, unanimously reversed, on the law, with costs, and the motion granted.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Andrias, Saxe, Moskowitz, DeGrasse, JJ.
After the bank settled this action with plaintiff, a victim of a complex Ponzi scheme perpetrated by a now deceased individual, it was assigned all plaintiff's claims against Ivcher and Waxfield. Funds were improperly transferred from plaintiff's account to Ivcher and Waxfield. Thus, standing in the shoes of plaintiff, its assignor, the bank is entitled to summary judgment on its claims against Ivcher and Waxfield for money had and received and unjust enrichment (see Madison Liquidity Invs. 119, LLC v Griffith, 57 AD3d 438, 440 ]). Ivcher and Waxfield have no defense to these claims based on the bank's own alleged unclean hands, since there is no evidence — indeed, there is no allegation — of wrongdoing on the part of plaintiff assignor (see Pro Bono Investments, Inc. v Gerry, 2008 WL 4755760, *20, 2008 US Dist LEXIS 87450, *56 [SD NY 2008]; Rankin v Toberoff, 1998 WL 370305, *5, 1998 US Dist LEXIS 9714, *20 [SD NY 1998]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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