Rich International Group Corp., Plaintiff–Respondent, v. Soleil Capitale Corporation, Defendant–Appellant.

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Supreme Court, Appellate Division, First Department.

Rich International Group Corp., Plaintiff–Respondent, v. Soleil Capitale Corporation, Defendant–Appellant.

2902

Decided: February 14, 2017

Friedman, J.P., Richter, Saxe, Moskowitz, Kapnick, JJ. Peyrot & Associates, P.C., New York (David C. Van Leeuwen of counsel), for appellant. The Law Office of Sidney Baumgarten, New York (Sidney Baumgarten of counsel), for respondent.

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Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered August 23, 2016, which denied defendant's motion for summary judgment, unanimously affirmed, without costs.

Defendant failed to establish as a matter of law that it issued the agreed-upon letter of credit in the amount of $25 million on which plaintiff could successfully draw, for which plaintiff agreed to pay a fee of $1.25 million.  Plaintiff's acknowledgment that defendant issued a document denominated a letter of credit is not sufficient, in view of the provisions in the document that create a question as to its viability for use by plaintiff, and plaintiff's inability to obtain a confirmation of the purported letter of credit's legitimacy.  Furthermore, the independence principle does not bar plaintiff's claim because no one attempted to draw on the letter of credit.

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CLERK