Irb–brasil Resseguros S.A. v. Portobello Int'l Ltd.

• Decision Date: 24 May 2011
• Citation: 84 A.D.3d 637,2011 N.Y. Slip Op. 04306,923 N.Y.S.2d 508
• Parties: IRB–BRASIL RESSEGUROS S.A., Plaintiff–Respondent–Appellant,v.PORTOBELLO INTERNATIONAL LIMITED, et al., Defendants–Appellants–Respondents.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 637

923 N.Y.S.2d 508

2011 N.Y. Slip Op. 04306

IRB–BRASIL RESSEGUROS S.A., Plaintiff–Respondent–Appellant,

v.PORTOBELLO INTERNATIONAL LIMITED, et al., Defendants–Appellants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

May 24, 2011.

Orrick, Herrington & Sutcliffe LLP, San Francisco, CA (Robert M. Yablon of the bar of the State of Wisconsin, admitted pro hac vice, of counsel), for appellants-respondents.Skadden, Arps, Slate, Meagher & Flom LLP, New York (Lea Haber Kuck of counsel), for respondent-appellant.TOM, J.P., SAXE, MOSKOWITZ, ACOSTA, ABDUS–SALAAM, JJ.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered June 1, 2010, which granted the motion of plaintiff IRB–Brasil Resseguros S.A. (IRB) for summary judgment, awarded post-judgment interest at the statutory, rather than contractual, rate and denied defendants' motion for leave to amend their answers, unanimously affirmed, with costs.

IRB met its prima facie burden of establishing entitlement to summary judgment with evidence that defendant Portobello International Limited issued the Global Note, defendant guarantors guaranteed it, IRB purchased it and Portobello defaulted ( see IRB–Brazil Resseguros, S.A. v. Inepar Investments, S.A., 83 A.D.3d 573, 922 N.Y.S.2d 308; IRB–Brasil Resseguros S.A. v. Eldorado Trading Corp. Ltd., 68 A.D.3d 576, 577, 891 N.Y.S.2d 362 [2009]; Eastbank v. Phoenix Garden Rest., 216 A.D.2d 152, 628 N.Y.S.2d 283 [1995], lv. denied 86 N.Y.2d 711, 635 N.Y.S.2d 948, 659 N.E.2d 771 [1995] ).

In opposition, defendants fail to raise issues of fact regarding the ownership or location of the Global Note. The record shows that defendants accepted the initial loan from IRB, paid interest on the Global Note for a number of years and, at the time of their default, negotiated new terms with IRB, implicitly admitting that IRB was the owner of the note. Moreover, defendants sued IRB—in its capacity as owner of the Global Note—in a separate action. Defendants cannot now be heard to object to the ownership which they embraced when it suited them ( see RPI Professional Alternatives, Inc. v. Citigroup Global Mkts. Inc., 61 A.D.3d 618, 619, 878 N.Y.S.2d 36 [2009] ).

Equally unavailing are defendants' arguments concerning plaintiff's inability to produce the physical note where, as here, defendants have waived presentment numerous times. These waivers excuse any requirement that the instrument sued upon be presented in connection with subsequent litigation against Portobello as issuers, or against the guarantors ( see Banco Nacional de Mexico v. Ecoban Fin., 276 A.D.2d 284, 713 N.Y.S.2d 869 [2000] ).

Defendants have failed to show they discharged their debt. Defendants' primary argument is that the JP Morgan document establishes payment. This document, however, which defendants never authenticated through anyone at JP Morgan, and which is offered for the truth of the matter asserted, is impermissible hearsay and does not fall within an exception to the hearsay rule ( see e.g. Zuluaga v. P.P.C. Constr., LLC, 45 A.D.3d 479, 480, 847 N.Y.S.2d 30 [2007] [document not “so patently trustworthy as to be self-authenticating”] ). Accordingly, it is insufficient to defeat the summary judgment motion ( see Rivera v. GT Acquisition 1 Corp., 72 A.D.3d 525, 526, 899 N.Y.S.2d 46 [2010]; Van Dina v. City of New York, 292 A.D.2d 267, 268, 740 N.Y.S.2d 15 [2002] ).

Defendants seek to avoid summary judgment by claiming a need for further discovery. Defendants did not demonstrate, however, that there was...