| Garmendia v O'Neill |
| 2007 NY Slip Op 09930 [46 AD3d 361] |
| December 18, 2007 |
| Appellate Division, First Department |
| Luis Vargas Garmendia et al.,Respondents-Appellants, v Brian O'Neill et al.,Appellants-Respondents. |
—[*1] Shearman & Sterling LLP, New York City (Henry Weisburg of counsel), for David C.Mulford, George B. Weiksner and Credit Suisse, appellants-respondents. Shalov Stone Bonner & Rocco LLP, New York City (Ralph M. Stone of counsel), forrespondents-appellants.
Order, Supreme Court, New York County (Karla Moskowitz, J.), entered March 15, 2007,which, inter alia, granted plaintiffs' cross motion to renew and, upon renewal, adhered to theorder, same court and Justice, entered April 13, 2006, granting defendants' motion to dismiss onthe ground of forum non conveniens and denying plaintiffs' motion to compel discovery, andgranted defendants' motion for reargument of that portion of the order which, as one condition ofdismissal, required defendants to "consent to the full faith and credit of any judgment thatplaintiffs obtain and pay it," and, upon reargument, adhered to the order, unanimously modified,on the law, to replace the quoted language with the phrase, "consent that any judgment plaintiffsobtain shall be enforceable in New York as provided in CPLR Article 53," and otherwiseaffirmed, without costs. Appeal from the April 13, 2006 order, unanimously dismissed, withoutcosts, as superseded by the appeal from the subsequent order.
Plaintiffs allege that defendants breached their duty under the laws of Uruguay to protectBanco Comercial, one of that country's oldest and largest banks, from fraudulent conduct inwhich two of its inside directors allegedly engaged, and which drained the bank of its assetsprecipitating its collapse. The court properly dismissed the action after defendants showed itwould be better litigated in Uruguay (see Islamic Republic of Iran v Pahlavi, 62 NY2d474, 478-479 [1984], cert denied 469 US 1108 [1985]). Uruguay has an interest inadjudicating claims involving its own banking institutions (see Phat Tan Nguyen v Banque Indosuez, 19 AD3d 292, 295[2005], lv denied 6 NY3d 703 [2006]), and, given that much of the evidence—forexample, evidence in the custody of the government of Uruguay and testimony and documentsfrom the bank's external auditors—is located in Uruguay, litigating in New York wouldpresent a hardship to defendants (see Continental Ins. Co. v Polaris Indus. Partners, 199[*2]AD2d 222, 223 [1993]).
The court also properly declined to adjourn the motion to dismiss until after completion ofdiscovery. Plaintiffs failed to show that the requested discovery could adduce facts establishingNew York as a proper forum for the action (see de Enamorado v Central Am. S.S.Agency, 160 AD2d 182 [1990]).
The imposition of the above-quoted condition of dismissal is not consistent with the CPLRmechanism for enforcement of foreign country money judgments (Network Fin. Inc. v JPMorgan Chase &Co., 41 AD3d 254, 255 [2007]).
We have considered plaintiffs' remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Saxe, Marlow, Catterson and Malone, JJ. [See 2007 NYSlip Op 30192(U).]