Swenvest Corp. v Wener

Swenvest Corp. v Wener 2010 NY Slip Op 03037 [72 AD3d 514] April 15, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

Swenvest Corporation, Appellant,
v
Stephen Wener et al., Respondents.

—[*1] Cowan, Liebowitz & Latman, P.C., New York (J. Christopher Jensen of counsel), for appellant.

Cole, Schotz, Meisel, Forman & Leonard, P.A., New York (Sean M. Lipsky of counsel), for respondents.

Judgment, Supreme Court, New York County (Charles E. Ramos, J., pursuant to CPLR 9002, upon a decision by Herman Cahn, J.), entered March 30, 2009, after a nonjury trial, dismissing the complaint, unanimously affirmed, with costs.

In this action to recover investment losses, the trial court's findings, which "rest[ed] in large measure on considerations relating to the credibility of witnesses" (Claridge Gardens v Menotti, 160 AD2d 544, 545 [1990]), were based upon a fair interpretation of the evidence, which showed that the textile finishing plant and its holding company, in which plaintiff and defendants invested, were not fraudulently operated and controlled by defendants. Plaintiff failed to prove that the pricing and credit terms imposed on the plant's various customers were unreasonable and inured solely to the benefit of other textile companies owned by defendants. The trial court also properly determined that the losses suffered by the plant were not a result of mismanagement or misuse, but were related to market forces.

We have considered plaintiff's remaining contentions and find them unavailing. Concur—Andrias, J.P., McGuire, Moskowitz, Acosta and DeGrasse, JJ.