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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 7, 1993

StatusPublished

Cited by2 cases

This text of 189 A.D.2d 580 (Magar, Inc. v. National Westminster Bank USA) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

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

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.

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Bluebook (online)

189 A.D.2d 580, 592 N.Y.S.2d 37, 1993 N.Y. App. Div. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/magar-inc-v-national-westminster-bank-usa-nyappdiv-1993.

Opinion

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