Cargill Fin. Servs. Intl., Inc. v Bank Fin. & Credit Ltd.

Cargill Fin. Servs. Intl., Inc. v Bank Fin. & Credit Ltd. 2010 NY Slip Op 01049 [70 AD3d 456] February 11, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

Cargill Financial Services International, Inc., Appellant,
v
Bank Finance and Credit Limited, Also Known as OJSC Bank Finance and Credit, Respondent.

—[*1] Dorsey & Whitney LLP, New York (Jonathan M. Herman of counsel), for appellant. Leader & Berkon, LLP, New York (Michael J. Tiffany of counsel), for 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 all funds contained in defendant's correspondent accounts located in New York and vacated a temporary restraining order previously granted by the court, unanimously affirmed, with costs. The June 18, 2009 temporary restraining order, which was extended by order of this Court entered September 8, 2009, is vacated.

Contrary to the motion court's conclusion, 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]). Even if plaintiff established a statutory basis for attachment of the accounts, given the nature of correspondent banking and its importance in international transactions, the court did not abuse its discretion by denying plaintiff's broad request to restrain all funds in the accounts. The evidence showed that a substantial part of the funds therein was held for the benefit of third-party clients of defendant who used the accounts to transact foreign business in U.S. currency. Thus, the wholesale attachment of all funds in the accounts would have interfered with innocent third parties' access to their money. As such, it was within the court's discretion to deny plaintiff's attachment application (see Morgenthau v Avion Resources Ltd., 49 AD3d 50 [2007], mod on other grounds 11 NY3d 383 [2008]; J.V.W. Inv. Ltd. v Kelleher, 41 AD3d 233 [2007]). Concur—Mazzarelli, J.P., Andrias, Moskowitz, Renwick and Richter, JJ.

The decision and order of this Court entered herein on October 27, 2009 (66 AD3d 589 [2009]) is [*2]hereby recalled and vacated (see 2010 NY Slip Op 63106[U] [decided simultaneously herewith]).