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Cargill Financial Services International, Inc. v. Bank Finance and Credit Limited

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 27, 2009

CARGILL FINANCIAL SERVICES INTERNATIONAL, INC., PLAINTIFF-APPELLANT,
v.
BANK FINANCE AND CREDIT LIMITED ALSO KNOWN AS OJSC BANK FINANCE AND CREDIT, DEFENDANT-RESPONDENT.

Three orders, Supreme Court, New York County (Charles E. Ramos, J.), entered July 7, 2009, which, as corrected and memorialized in an order entered August 5, 2009, denied plaintiff's application for an order of attachment of defendant's correspondent accounts located in New York and vacated a TRO previously granted by the court, unanimously affirmed, with costs. The temporary restraining order, which was extended by order of this Court entered September 8, 2009, is vacated.

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.

Mazzarelli, J.P., Andrias, Moskowitz, Renwick, Richter, JJ.

601890/09

While plaintiff's evidence established a basis for quasi in rem jurisdiction, in that defendant, a Ukranian bank, utilized its New York correspondent accounts to receive funds and make interest payments pursuant to the terms of the parties' loan agreements and associated letters of credit (see generally Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65 [1984]), plaintiff failed in its burden to show the extent, if any, that defendant had an attachable ownership interest in the subject correspondent accounts (see e.g. Sigmoil Resources v Pan Ocean Oil Corp. (Nigeria), 234 AD2d 103 [1996], lv dismissed 89 NY2d 1030 [1997]). As such, the court properly exercised its discretion to deny plaintiff's attachment application (see J.V.W. Inv. Ltd. v Kelleher, 41 AD3d 233 [2007]).

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

20091027

© 1992-2009 VersusLaw Inc.



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