LALASIS TRADING PTE LTD v. JANATA BANK

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

LALASIS TRADING PTE, LTD., Plaintiff-Appellant, v. JANATA BANK, Defendant-Respondent.

Decided: June 26, 2008

SAXE, J.P., NARDELLI, MOSKOWITZ, ACOSTA, DeGRASSE, JJ. Levy, Ehrlich & Petriello, New York (John J. Petriello of counsel), for appellant. Robert E. Anderson, Allendale, NJ, for respondent.

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered October 22, 2007, which denied plaintiff's motion for summary judgment in lieu of complaint and, upon a search of the record, granted summary judgment to defendant dismissing the complaint for lack of subject matter jurisdiction, unanimously affirmed, with costs.

Plaintiff, a Singapore corporation in the textile business, seeks recognition and enforcement of a foreign judgment against defendant, a bank incorporated in Bangladesh and owned by its government.   The judgment was issued in Singapore in connection with defendant's failure to honor an irrevocable letter of credit issued by it.

 Defendant is a foreign state under the Foreign Sovereign Immunities Act (see 28 USC § 1602 et seq.), and is entitled to presumptive sovereign immunity from suit in the United States, unless a specified exception to such immunity applies (see City of New York v. Permanent Mission of India to the United Nations, 446 F.3d 365, 369 [2006], affd. 551 U.S. 193, 127 S.Ct. 2352, 168 L.Ed.2d 85 [2007] ).   Although the act of issuing a letter of credit falls within the scope of “commercial activity” as defined by 28 USC § 1603(d) (see Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 310 [1981], cert. denied 454 U.S. 1148, 102 S.Ct. 1012, 71 L.Ed.2d 301 [1982] ), the subject activity lacks the requisite nexus to the United States to fall within the “commercial activity” exception to sovereign immunity (see 28 USC § 1605[a][2] ).

The dishonored letter of credit involved foreign entities, with a Singapore branch of an international bank acting as the advising bank, and did not have a “direct effect” in the United States.   The United States was not identified as the place of performance of any obligation under the letter of credit, and the fact that a New York branch of the advising bank may have been used for some tangential purpose does not create the necessary “direct effect” in the United States (see Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1146-1147 [1994], cert. denied 513 U.S. 1079, 115 S.Ct. 728, 130 L.Ed.2d 632 [1995];  International Housing Ltd. v. Rafidain Bank Iraq, 893 F.2d 8, 11-12 [1989] ).   Accordingly, in the absence of an exception to sovereign immunity, the court was without subject matter jurisdiction to hear the matter, and, upon searching the record, properly dismissed the complaint (see CPLR 3212 [b] ).

We have considered plaintiff's remaining arguments and find them unavailing.