| IRB-Brasil Resseguros S.A. v Portobello Intl. Ltd. |
| 2009 NY Slip Op 01428 [59 AD3d 366] |
| February 26, 2009 |
| Appellate Division, First Department |
| IRB-Brasil Resseguros S.A., Respondent, v PortobelloInternational Limited et al., Appellants. |
—[*1] Skadden, Arps, Slate, Meagher & Flom LLP, New York (Sarah H. Yardeni of counsel), forrespondent.
Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about September30, 2008, which granted plaintiff's motion to permanently enjoin defendants and others acting inconcert with them from prosecuting or continuing to prosecute an action in Brazil, unanimouslyaffirmed, with costs.
The court properly invoked its equity power to enjoin defendants from prosecuting the actionthey commenced in Brazil in about April 2008, in order to prevent the waste of judicialresources, unnecessary legal expenses, and duplicative litigation that might lead to conflictingresults (Jay Franco & Sons Inc. v GStudios, LLC, 34 AD3d 297 [2006]). An injunction may be issued "where it can beshown that the suit sought to be restrained is not brought in good faith, or that it was brought forthe purpose of vexing, annoying and harassing the party seeking the injunction" (ParamountPictures, Inc. v Blumenthal, 256 App Div 756, 759 [1939], appeal dismissed 281NY 682 [1939]). The instant action to collect on unpaid notes was properly placed in New Yorkbecause the global note and related documents at issue explicitly provide that they are governedby New York law, and the parties agreed to submit to the jurisdiction of the courts of this state.This action was commenced in 2006, and defendants delayed commencement of their Brazilianaction until about a year and a half later, which is evidence of their bad faith. Their motivation inthat action was to avoid the application of New York law, which is yet another indication of badfaith. Since "a contrary decision in [the foreign court] would interfere with the New York court'sability to resolve the issues before it," it is entirely appropriate for the New York court toexercise its discretion to enjoin the action in the foreign court (Interested Underwriters atLloyd's v H.D.I. III Assoc., 213 AD2d 246, 246 [1995]). Comity does not require our courtsto defer to the foreign jurisdiction under such circumstances (Certain Underwriters at Lloyds, London v Millennium Holdings LLC,52 AD3d 295 [2008]).[*2]
We have considered defendants' remaining contentionsand find them unavailing. Concur—Tom, J.P., Andrias, Nardelli, Buckley and DeGrasse,JJ. [See 2008 NY Slip Op 32644(U).]