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B.B.C.F.D., S.A. v. Bank Julius Baer & Co. Ltd.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 5, 2009

B.B.C.F.D., S.A. (A PANAMANIAN CORPORATION), ET AL., PLAINTIFFS,
v.
BANK JULIUS BAER & CO. LTD., ET AL., DEFENDANTS-RESPONDENTS, JULIUS BAER AMERICAS, INC., ETC., ET AL., DEFENDANTS, BARUCH IVCHER, ET AL., DEFENDANTS-APPELLANTS. [AND OTHER ACTIONS]

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered January 10, 2008, which denied defendants Baruch Ivcher's and Waxfield Limited's motion to amend their answer to include cross claims by Ivcher against defendant/cross-claim plaintiff Bank Julius Baer & Co. Ltd. and two of its officers, unanimously affirmed, with costs.

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.

604084/03, 603818/03

The facts underlying Ivcher's proposed cross claims have been known to him since no later than 2004, if not as long ago as late 2001. His delay until August 2007 in requesting leave to amend his answer is inexcusable (see Chichilnisky v The Trustees of Columbia Univ. in City of N.Y., 49 AD3d 388, 389 [2008]; Spence v Bear Stearns & Co., 264 AD2d 601 [1999]).

Moreover, allowing the proposed amendment, which concerns events that took place no later than 1999, would significantly alter the status of this litigation by adding multiple new cross claims and a new cross-claim plaintiff, effectively resurrecting two cases that, after many years of litigation, are close to being resolved. In any event, the new cross claims are untimely (see CPLR 213[8]), and the "relation back" provision of CPLR 203(f) does not apply because "the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading."

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090505

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