| HSBC Guyerzeller Bank AG v Chascona N.V. |
| 2009 NY Slip Op 07312 [66 AD3d 488] |
| October 13, 2009 |
| Appellate Division, First Department |
| HSBC Guyerzeller Bank AG, Plaintiff, v Chascona N.V.et al., Defendants, and CIBC Mellon Trust Company et al., Appellants. Samuel Montagu & Co.Ltd., Now Known as HSBC Private Bank (UK) Limited, SubstitutedPlaintiff-Respondent. |
—[*1] Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (Daniel L. Carroll of counsel),for respondent.
Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about June 3,2008, which denied the motion of defendants CIBC Mellon Trust Company and ChryslerCanada, Inc. (collectively, Chrysler) to dismiss the amended complaint of substituted plaintiffSamuel Montagu & Co. Ltd., unanimously affirmed, without costs.
On a prior appeal in this case, we determined that Montagu's 2003 assignment of the loanagreement to its affiliated bank, plaintiff HSBC Guyerzeller Bank AG, was ineffective as todefendant debtor Hotel Mora Corp., that the mortgage "reverted" to Montagu, and that Montaguis the proper foreclosure plaintiff (42 AD3d 381 [2007]). Contrary to Chrysler's contention, thedocumentary evidence does not conclusively establish that Montagu received full payment of itsloan from Guyerzeller in connection with the assignment. The evidence shows rather thatGuyerzeller's 2003 payment was made as consideration for the assignment and that, when theassignment was declared ineffective as to Mora, Montagu agreed to return Guyerzeller'spayment, pursuant to the restoration agreement.
We reject Chrysler's argument that the Court of Appeals' decision in Reliance Ins. Co. v PolyVision Corp.(9 NY3d 52 [2007]) calls into question the rationale of the aforesaid order permittingMontagu to be substituted as foreclosure plaintiff. The Reliance case dealt with thenarrow question of whether a corporate entity related to the original plaintiff may be regarded as"the plaintiff" for purposes of CPLR 205 (a), which adds a grace period to the statute of [*2]limitations for "the plaintiff, or, if the plaintiff dies, and the causeof action survives, his or her executor or administrator." Montagu was substituted under CPLR1018, which provides that an action may be continued "[u]pon any transfer of interest." It couldalso properly have been substituted on a relation-back theory (CPLR 203 [f]).
We also reject Chrysler's argument that we misapplied English law as to the validity of theassignment and the implications for each party arising from Mora's lack of consent thereto. Thelaw was thoroughly briefed on the prior appeal, in which Chrysler made the very samearguments about the propriety of substitution under CPLR 1018, relying, inter alia, on theaffidavit of an English law expert whose opinion mirrored that of Montagu's English law expertin concluding that the assignment, while valid as between Montagu and Guyerzeller, was invalidas against Mora because Mora's permission to assign had not been obtained.Concur—Saxe, J.P., Nardelli, Buckley, Acosta and Freedman, JJ. [See 2008 NYSlip Op 31510(U).]