CARGILL FINANCIAL SERVICES INTERNATIONAL INC v. BANK FINANCE AND CREDIT LIMITED OJSC

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

CARGILL FINANCIAL SERVICES INTERNATIONAL, INC., Plaintiff-Appellant, v. BANK FINANCE AND CREDIT LIMITED also known as OJSC Bank Finance and Credit, Defendant-Respondent.

Decided: October 27, 2009

MAZZARELLI, J.P., ANDRIAS, MOSKOWITZ, RENWICK, RICHTER, JJ. 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 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.

 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 N.Y.2d 65, 476 N.Y.S.2d 64, 464 N.E.2d 432 [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 A.D.2d 103, 650 N.Y.S.2d 726 [1996], lv. dismissed 89 N.Y.2d 1030, 658 N.Y.S.2d 245, 680 N.E.2d 619 [1997] ).   As such, the court properly exercised its discretion to deny plaintiff's attachment application (see J.V.W. Inv. Ltd. v. Kelleher, 41 A.D.3d 233, 837 N.Y.S.2d 650 [2007] ).