U.S. Bank Nat'l Ass'n v. App Int'l Fin. Co.

• Decision Date: 16 October 2012
• Citation: 2012 N.Y. Slip Op. 06901,100 A.D.3d 179,952 N.Y.S.2d 533
• Parties: U.S. BANK NATIONAL ASSOCIATION, Plaintiff–Respondent, v. APP INTERNATIONAL FINANCE COMPANY, B.V., et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 179
952 N.Y.S.2d 533
2012 N.Y. Slip Op. 06901

U.S. BANK NATIONAL ASSOCIATION, Plaintiff–Respondent,
v.
APP INTERNATIONAL FINANCE COMPANY, B.V., et al., Defendants–Appellants.

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

Oct. 16, 2012.

[952 N.Y.S.2d 534]

Schnader Harrison Segal & Lewis LLP, New York (Benjamin P. Deutsch, Kenneth R. Puhala and Alizah Z. Diamond of counsel), for appellants.

Seward & Kissel LLP, New York (Dale C. Christensen, Jr. and John J. Galban of counsel), and Wilk Auslander LLP, New York (Jay S. Auslander, Jessica Taran and

[952 N.Y.S.2d 535]

Adam (Aari) Itzkowitz of counsel) for respondent.

PETER TOM, J.P., RICHARD T. ANDRIAS, JAMES M. CATTERSON, SHEILA ABDUS–SALAAM, NELSON S. ROMÁN, JJ.

CATTERSON, J.

[100 A.D.3d 180]Once more, we are called upon to resolve matters in this case where the plaintiff's attempts to enforce a billion dollar judgment, due under three promissory notes executed by the defendants between 2002 and 2006, have been repeatedly thwarted by the defendants. The defendants' strategy of delay has revolved [100 A.D.3d 181]around the procurement of various court orders in Indonesia to frustrate the plaintiff and the jurisdiction of the courts in New York.

Initially, the defendants contend that the judgment they seek to vacate, which was awarded to the plaintiff on three of its seven causes of action, should be vacated because the court did not sever the remaining causes of action. The defendants waived that issue when they failed to raise it on appeal from the $851 million judgment six years ago. 29 A.D.3d 394, 815 N.Y.S.2d 66 (1st Dept.2006), lv. dismissed,8 N.Y.3d 830, 828 N.Y.S.2d 291, 861 N.E.2d 107 (2007).

In that case, the record was clear that the defendants were not appealing on the ground that the motion court had somehow failed to sever the Trustee's remaining causes of action for indemnification, and the costs and expenses of collection, including attorneys' fees. Having failed to raise the issue on their appeal from the judgment or on their reargument motion before this Court or on their motion for leave to appeal to the Court of Appeals, the defendants have waived any argument based on severance. See Goncalves v. Stuyvesant Dev. Assoc., 244 A.D.2d 267, 268, 664 N.Y.S.2d 764, 765 (1st Dept.1997) (“Since third-party plaintiff's challenge to the validity of the summary judgment order ... could have been raised in its prior appeal of that order, which culminated in this Court's affirmance, the point is waived”); Katz v. City of New York, 231 A.D.2d 448, 448, 647 N.Y.S.2d 85, 85 (1st Dept.1996) (refusing to consider issue on appeal where it “should have been raised on ... prior appeal of the ... order in this case, which culminated in this Court's affirmance”).

Moreover, the defendants once more assert that this Court should resort to the doctrine of comity to forestall progress in the instant case. The defendants now assert that we should accord recognition to a provisional injunction of a court in Indonesia. Specifically, the provisional injunction of the Indonesian court orders the defendants to produce statements and information on their assets to an Indonesian company, Indah Lestari. The injunction prohibits disclosure to any other entity. Thus, the apparent purpose of the Indonesian injunction is to grant Indah Lestari the ability to examine the assets of the Indah Lestari defendants, which it can attach in order to satisfy its Indonesian judgment. Yet, in three years, it is undisputed that Indah Lestari has not attached a single asset in satisfaction of its judgment.

In a prior appeal by the defendants in a related action, we noted the international legal gamesmanship perpetrated by the [100 A.D.3d 182]defendants, particularly with regard to the defendants' procurement of injunctions in Indonesia. In relevant part, we determined as follows:

“Even if the defendants were found to be in violation of an Indonesian court order, they clearly are the engine of...