COUTTS BANK SWITZERLAND LTD AG v. HARVEST INTERNATIONAL OF AMERICA INC

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Supreme Court, Appellate Division, First Department, New York.

COUTTS BANK (SWITZERLAND) LTD., Formerly Known as Coutts & Co., AG., New York Branch, Plaintiff-Respondent, v. HARVEST INTERNATIONAL OF AMERICA, INC., Defendant-Appellant.

Decided: February 25, 1999

SULLIVAN, J.P., NARDELLI, WALLACH and TOM, JJ. Daniel M. Mandil, for Plaintiff-Respondent. Jon Paul Robbins, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered August 6, 1998, awarding plaintiff damages, and bringing up for review an order, entered June 17, 1998, which granted plaintiff's motion for summary judgment in lieu of complaint, unanimously affirmed, with costs.   Appeal from order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendant's allegations that he orally requested plaintiff to sell the stock it held as collateral at a time when the stock still had value are unsubstantiated.   Moreover, they are inconsistent with the fact that during and shortly after the purported conversations, agreements to extend the loan generated correspondence from both sides that never mentioned the collateral, and are also inconsistent with the fact that after defendant again fell into default, he did not object to plaintiff's letter indicating, in another apparent effort to accommodate him, that it would hold onto the collateral pursuant to his request.   In sum, defendant's papers are utterly insufficient to raise a triable issue of fact as to the reasonableness of plaintiff's treatment of the collateral (cf., IBJ Schroder Bank & Trust Co. v. Kerney, 200 A.D.2d 519, 608 N.Y.S.2d 816).

MEMORANDUM DECISION.