Magar, Inc. v. National Westminster Bank USA

Appellate Division of the Supreme Court of New York

Magar, Inc. v. National Westminster Bank USA

189 A.D.2d 580, 592 N.Y.S.2d 37, 1993 N.Y. App. Div. LEXIS 52

Appellate Division of the Supreme Court of the State of New York·Decided January 7, 1993·Published·Cited by 2 cases

Opinion

Order, Supreme Court, New York County (Beverly S. Cohen, J.), entered August 14, 1992, which inter alia denied plaintiff’s motion for an order pursuant to CPLR 6301 and UCC 5-114 preliminarily enjoining defendant bank from honoring demand upon a certain letter of credit, unanimously affirmed, with costs.

[581]*581Upon this record plaintiff has failed adequately to support the allegation of fraud in the transaction underlying the issuance of the letter of credit. The record does not demonstrate that defendant Burki fraudulently entered into the agreement to purchase the interest in the 1989 French vineyard harvest. Further, there is a question as to whether plaintiff was in default of its obligation to provide financing for the transaction which was in fact consummated. At best, the evidence at bar merely supports allegations of breach of contract, not fraud (see, Soper v Simmons Intl., 632 F Supp 244, 249).

A preliminary injunction was also properly denied on the basis that the record indicates that plaintiff would not be irreparably injured in the absence of injunctive relief. We further note the contractual provision for arbitration in Switzerland.

We have considered all other claims and find them to be of no merit. Concur—Murphy, P. J., Carro, Rosenberger, Ross and Asch, JJ.

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Order, Supreme Court, New York County (Beverly S. Cohen, J.), entered August 14, 1992, which inter alia denied plaintiff’s motion for an order pursuant to CPLR 6301 and UCC 5-114 preliminarily enjoining defendant bank from honoring demand upon a certain letter of credit, unanimously affirmed, with costs.

[581]*581Upon this record plaintiff has failed adequately to support the allegation of fraud in the transaction underlying the issuance of the letter of credit. The record does not demonstrate that defendant Burki fraudulently entered into the agreement to purchase the interest in the 1989 French vineyard harvest. Further, there is a question as to whether plaintiff was in default of its obligation to provide financing for the transaction which was in fact consummated. At best, the evidence at bar merely supports allegations of breach of contract, not fraud (see, Soper v Simmons Intl., 632 F Supp 244, 249).

A preliminary injunction was also properly denied on the basis that the record indicates that plaintiff would not be irreparably injured in the absence of injunctive relief. We further note the contractual provision for arbitration in Switzerland.

We have considered all other claims and find them to be of no merit. Concur—Murphy, P. J., Carro, Rosenberger, Ross and Asch, JJ.

Magar, Inc. v. National Westminster Bank USA, 189 A.D.2d 580, 592 N.Y.S.2d 37, 1993 N.Y. App. Div. LEXIS 52 (N.Y. Ct. App. 1993).

Pincite

189 A.D.2d 580 (Magar, Inc. v. National Westminster Bank USA) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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