Gonzalez v. Industrial Bank (of Cuba)

• Decision Date: 26 December 1961
• Citation: 33 Misc.2d 283,227 N.Y.S.2d 456
• Parties: Yolanda Duque de Estrada GONZALEZ, Plaintiff, v. INDUSTRIAL BANK (OF CUBA), Defendant, and Banco Nacional de Cuba, Intervenor- Defendant.
• Court: New York Supreme Court

Page 456

227 N.Y.S.2d 456

33 Misc.2d 283

Yolanda Duque de Estrada GONZALEZ, Plaintiff, v. INDUSTRIAL BANK (OF CUBA), Defendant, and Banco Nacional de

Cuba, Intervenor- Defendant.

Supreme Court, special Term, New York County, Part I.

Dec. 26, 1961.

Willkie, Farr, Gallagher, Walton & FitzGibbon, New York City, for plaintiff.

Rabinowitz & Boudin, New York City, for defendants and Ambassador of the Czechoslovak Socialist Republic.

OWEN McGIVERN, Justice.

This is an application in the name of the Ambassador of the Czechoslovak Socialist Republic to the United States on behalf of the present regime in Cuba. The purpose is to permit the Ambassador to appear specially solely to assert a Plea of Sovereign Immunity on behalf of Cuba and the Banco Nacional de Cuba, an agent and instrumentality of that country's present regime.

The subject matter is a certain fund of $155,000 under attachment in this action, held by the Sheriff of the City of New York pending the determination of this action. The trial herein began on November 13, 1961 and was concluded on November 15, 1961. This application is made after the conclusion thereof. The court has decided after trial that plaintiff is entitled to the relief requested in the complaint. Its opinion with respect thereto is being filed simultaneously herewith (33 Misc.2d 285, 227 N.Y.S.2d 459).

This application would nullify such decision since it seeks under the Plea of Sovereign Immunity to vacate the warrant of attachment, releasing the attached fund to the Banco Nacional de Cuba and enjoining any execution against said fund, on the ground that it is the property of the Cuban Government.

Appearing specially, defendant Industrial, still a private banking corporation, moved to vacate the warrant of attachment and the levy thereunder, and to set aside the summons and complaint. That motion was denied (22 Misc.2d 874, 195 N.Y.S.2d 346), and unanimously affirmed on appeal (10 A.D.2d 624, 196 N.Y.S.2d 926) and subsequently unanimously affirmed by the Court of Appeals (9 N.Y.2d 623, 210 N.Y.S.2d 227, 172 N.E.2d 80).

Meanwhile, defendant Industrial had permitted the entry of a default judgment on December 11, 1959 for $137,444.90. In February, 1961, it moved to set it aside and for leave to answer and defend upon the merits. Simultaneously Banco Nacional de Cuba moved for leave to intervene as a party defendant or to be substituted in the place of Industrial as a party defendant, and to open the default judgment, and to permit it to plead upon the merits. These motions were denied at Special Term but reversed on appeal (13 A.D.2d 770, 215 N.Y.S.2d 632) and Banco Nacional appeared in the action.

It appears that on October 13, 1960, defendant Industrial was dissolved, pursuant to Law 891 of the present Cuban regime, article IV. Under article III of said law, Banco Nacional was declared the legal successor, surrogate in the place of and stead of defendant Industrial, with respect to its property rights and shares of stock, and all of the assets and liabilities of Industrial were transferred to Banco Nacional.

The State Department of the United States has not filed any suggestion that sovereign immunity be considered in this action. Its failure or refusal to suggest such immunity is accorded significant weight (National City Bank of New York v. Republic of China, 348 U.S. 356, 360, 75 S.Ct. 423, 99 L.Ed. 389).

The court has decided that Law...