Banco Nacional de Mexico v. Ecoban Finance Ltd.

276 A.D.2d 284, 713 N.Y.S.2d 869, 2000 N.Y. App. Div. LEXIS 9967

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 2000
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Charles Ramos, J.), entered July 20, 1999, which, upon the prior grant of plaintiffs motion for summary judgment in lieu of complaint, awarded plaintiff the total sum of $3,705,027.80, unanimously affirmed, with costs.

In this action against a guarantor of a Mexican promissory note, the motion court properly found that the original note did not have to be filed with the court since there was no dispute as to the note’s authenticity or plaintiffs ownership thereof (cf., Ventricelli v DeGennaro, 221 AD2d 231, lv denied 87 NY2d 808). The use of copies is permitted in appropriate circumstances (CPLR 4539), and defendant filed a copy of the note certified by the Mexican court in which the original note had been filed in connection with another action to which defendant is not a party.

Nor were there issues of fact warranting denial of plaintiffs motion for summary judgment. Presentment of the note had been validly waived (see, UCC 3-511; Manufacturers & Traders Trust Co. v Griffin, 226 AD2d 1088, 1089). Nor was presentment essential to defendant’s exercise of its right of subrogation since defendant guarantor is automatically subrogated to the rights of the creditor to the extent that defendant pays the note.

Finally, no basis existed to dismiss or stay the action on grounds of comity by reason of the pending Mexican proceedings (see, Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574, 581). Concur — Nardelli, J. P., Tom, Andrias, Buckley and Friedman, JJ.