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«Greenberg Freeman LLP, New York (Michael A. Freeman of counsel), for appellant. Zeichner Ellman & Krause LLP, New York (Jantra Van Roy of counsel), ...»

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I disagree with the majority’s assessment that plaintiffs’ claim against these defendants is based on “unwarranted inferential leaps.” Rather, “[m]indful that issue finding and not issue resolution is a court’s proper function on a motion for summary judgment, and drawing all inferences in plaintiff[s’] favor as we are bound to do” (Cruz v American Export Lines, 67 NY2d 1, 13 [1986]), there is enough circumstantial evidence - including defendants’ recruitment of Nihan, the timing of their various electronic conversations regarding the transaction and the beginning of Wang’s pseudonymous e-mail campaign, their animus towards plaintiff Cawley, their knowledge of Wang’s hostility directed at Cawley, Brodsky's e-mailing of the “pervscan” link to Wang, which Wang then sent to Knight - as well as direct evidence in the form of the mysterious email (with Wang's mantra about "bad things happen when good people do nothing") that went out under Brodsky's name to Knight, but of which Brodsky says he knows nothing - that leads me to conclude that if defendants’ summary judgment motion dismissing the second amended complaint is decided on the version of the facts most favorable to plaintiffs (see Mullin v 100 Church LLC, 12 AD3d 263, 264 [2004]), summary judgment was properly denied.

Defendants’ avowed protestations of innocence do not render all of this circumstantial and direct evidence speculative.

While the affidavits of Brodsky, Stephan and Wang purport to explain away the evidence, it is not this Court’s function to make credibility determinations. And, although much of plaintiffs’ evidence is circumstantial, “[c]ircumstantial evidence is not inherently weaker than direct evidence and frequently circumstantial evidence may be stronger than direct evidence” (1 NY PJI3d 1:70, at 105 [2011]). In granting summary judgment, the majority has disregarded the concept that “[a] determination based on circumstantial evidence is essentially one to be made by the fact-finder, guided by the legal principles appropriate to such a determination” (Abramo v Pepsi-Cola Buffalo Bottling Co., 224 AD2d 980, 981 [1996]).

Hoguet Newman Regal & Kenney, LLP, New York (Fredric S. Newman and Helene R. Hechtkopf of counsel), for appellant.

Skadden, Arps, Slate, Meagher & Flom LLP, New York (Lea Haber Kuck of counsel), for respondent.

_________________________

Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered December 4, 2009, in favor of plaintiff and against defendants in the principal amount of $27,772,409.86, plus interest at the rate of 9.9% per annum from October 22, 2009 and postjudgment interest at the rate of 9.9%, and bringing up for review orders, same court and Justice, entered August 3, 2009, which denied defendant Inepar SA Industria e Construções (IIC)’s motion for summary judgment and granted plaintiff’s motion for summary judgment as to liability, unanimously modified, on the law, to limit the rate of postjudgment interest to the statutory rate of 9% per annum, and otherwise affirmed, without costs. Appeals from the aforementioned orders, from a judgment, same court and Justice, entered August 19, 2009, in favor of plaintiff on the issue of liability, and from an order, same court (Beverly S. Cohen, J.H.O.), entered November 9, 2009, unanimously dismissed, without costs, as subsumed in the appeal from the December 4, 2009 judgment.

Plaintiff established a prima facie case on its motion for summary judgment by submitting evidence of an absolute and unconditional guarantee, the underlying debt and the guarantor’s failure to perform (see Bank of Am., N.A. v Solow, 59 AD3d 304 [2009], lv dismissed 12 NY3d 877 [2009]).

In support of its motion for summary judgment and in opposition to plaintiff’s motion, IIC submitted admissible evidence, as well as an expert opinion on Brazilian law, to demonstrate that the two officers who signed the guarantee lacked actual authority under Brazilian law. However, the guarantee, which is in an amount greater than $250,000, contains a New York choice of law clause.

General Obligations Law (GOL) § 5-1401(1) provides, in

pertinent part:

–  –  –

These two statutes implement the public policy that favors New York courts retaining and determining actions where New York law is applicable to the dispute pursuant to the agreement of the parties and New York is the designated forum. Some federal courts have held that the choice of law provisions within section 5-1401 are enforceable unless procured by fraud or overreaching (see Sabella v Scantek Med., Inc., 2009 WL 3233703, *13, 2009 US Dist LEXIS 88170, *35-36 [SD NY 2009]; Sun Forest Corp. v Shvili, 152 F Supp 2d 367, 388-389 [SD NY 2001]; Lehman Bros. Commercial Corp. v Minmetals Intl. Non-Ferrous Metals Trading Co., 179 F Supp 2d 118, 136 [SD NY 2000].

The enforcement of such clauses is favored since it “protect[s] the justifiable expectation of the parties who choose New York law as the governing law” in international financial transactions (Banco Nacional De Mexico, S.A., Integrante Del Grupo Financiero Banamex v Societe Generale, 34 AD3d 124, 130-131 [2006]; Lehman Bros. Commercial Corp., 179 F Supp 2d at 136-137).

Thus, where, as here, the parties affirmatively choose New York law and a New York forum in a transaction in United States dollars, New York law will be applied to determine whether the agreement, allegedly executed by a person lacking actual authority under foreign law, is enforceable by a third party (Indosuez Intl. Fin. v National Reserve Bank, 98 NY2d 238 [2002]).





Under New York law, an agreement executed without proper authority may be enforceable under the doctrines of apparent authority and ratification (id. at 245-246). Plaintiff failed to establish its entitlement to summary judgment pursuant to the doctrine of apparent authority since it submitted no evidence that it relied on any words or conduct of IIC that the two officers were authorized to execute the guarantee (see Standard Funding Corp. v Lewitt, 89 NY2d 546, 551 [1997]; Hallock v State of New York, 64 NY2d 224, 231 [1984]). However, as in Indosuez, the transaction was implicitly ratified by IIC since, as a result of the transaction, IIC’s subsidiary received $30 million, which was used for investments undertaken pursuant to a strategy set by IIC’s Administrative Council. IIC’s acceptance of benefits flowing from an agreement that it now asserts was unauthorized when executed constitutes an affirmance of the agreement giving rise to a ratification (see Goldston v Bandwidth Tech. Corp., 52 AD3d 360, 363-364 [2008]), lv denied 14 NY3d 703 [2010]; Matter of Cologne Life Reins. Co. v Zurich Reins. [N. Am.], 286 AD2d 118, 127 [2001]).

Plaintiff demonstrated its status as a relevant account holder entitled to sue on the guarantee by submitting Euroclear account statements identifying BB Securities as the account holder and a disavowal and assignment agreement executed by BB Securities in favor of plaintiff (see IRB-Brasil Resseguros S.A.

v Eldorado Trading Corp. Ltd., 68 AD3d 576 [2009]; see also Applestein v The Province of Buenos Aires, 415 F3d 242 [2d Cir 2005]). Regardless of when it obtained proof of its right to bring suit, plaintiff timely commenced the action, and, in any event, IIC waived any affirmative defense of untimeliness by failing to plead it.

Since the guarantee does not contain a clear, unambiguous, and unequivocal expression that interest will be paid at the rate higher than the statutory rate until the judgment is satisfied, the statutory rate of interest will be applied (see Banque Nationale De Paris v 1567 Broadway Ownership Assoc., 248 AD2d 154, 155 [1998]; CPLR 5004; compare Retirement Accounts, Inc. v Pacst Realty, LLC, 49 AD3d 846, 846-847 [2008]).

An appeal having been taken to this Court by the above-named appellant from an order of the Supreme Court, New York County (Charles E. Ramos, J.), entered on or about February 17, 2010, And said appeal having been argued by counsel for the respective parties; and due deliberation having been had thereon, and upon the stipulation of the parties hereto dated April 13, 2011, It is unanimously ordered that said appeal be and the same is hereby withdrawn in accordance with the terms of the aforesaid stipulation.

–  –  –

Jonathan I. Edelstein, New York, for petitioner.

Andrew M. Cuomo, Attorney General, New York (Ann P. Zybert of counsel), for respondents.

_________________________

Determination after hearing by respondent The New York State Traffic Violations Bureau Appeals Board, dated September 30, 2009, affirming petitioner’s traffic conviction, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [O. Peter Sherwood, J.], entered January 20, 2010), dismissed, without costs.

The determination that petitioner violated Vehicle and Traffic Law § 1128(a) is supported by substantial evidence. The testimony of the police officer that she had a clear, unobstructed view of petitioner and that petitioner changed lanes without signaling, causing her to hit her brakes, is not incredible as a matter of law and is sufficient to sustain the determination that petitioner made an unsafe lane change (see Matter of Neiman v State of N.Y. Dept. of Motor Vehs. Appeals Bd., 265 AD2d 558 [1999]; Matter of Miranda v Adduci, 172 AD2d 526 [1991]). The Administrative Law Judge’s follow-up question regarding the delineation of the traffic lanes was asked merely to clarify the evidence already presented, and thus did not violate 15 NYCRR 124.4(b). Petitioner’s challenges to the officer’s testimony raise an issue of credibility which was primarily for the fact-finder to resolve (see Matter of Silberfarb v Board of Coop. Educ. Servs. Third Supervisory Dist., Suffolk County, 60 NY2d 979 [1983]; Matter of Levy v Jackson, 266 AD2d 636 [1999]).

We reject petitioner’s argument, based on his attorney's unsubstantiated hearsay affidavit, that the Board abdicated its judicial role. The record indicates that the Board “ha[d] the means to make an informed decision... based on knowledge sufficient for ‘wise and proper judgment,'" (Matter of Taub v Pirnie, 3 NY2d 188, 194 [1957], quoting Matter of Joyce v Bruckman, 257 App Div 795, 798 [1939]), made an "independent appraisal" and reached an "independent conclusion" (Matter of New York Pub. Interest Research Group Straphangers Campaign v Metropolitan Transp. Auth., 309 AD2d 127, 139 [2003], lv denied 100 NY2d 513 [2003], quoting Taub, 3 NY2d at 195 [internal quotation marks omitted]).

Pollack Pollack Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant.

Helman R. Brook, New York, for respondent.

_________________________

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered March 25, 2010, which granted the motion of defendant Consolidated Edison (Con Ed) for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, the motion denied, and the complaint and the cross claims reinstated.

Plaintiff claims that in October 2006 she tripped and fell as the result of a three-inch-deep depression in the roadway at the intersection of Walton Avenue and 161st Street in the Bronx.

Con Ed seeks summary judgment dismissing the complaint as against it on the ground that it did not create the defect. Although Con Ed denies that it ever worked at the exact location of the accident, its records indicate that in 2005 codefendant and cross claimant the City of New York issued several permits to Con Ed to perform work requiring excavation and repaving of the street at the intersection where plaintiff fell. The City’s witness testified that, apart from the City’s repair of two potholes nearby on Walton Avenue in 2006, there was no record of any street work in the vicinity of the intersection in 2005 and 2006 by any party other than Con Ed.

The motion court erred in granting summary judgment to Con Ed because the circumstantial evidence linking Con Ed to the alleged hazardous condition is sufficient to preclude summary judgment (see DeSilva v City of New York, 15 AD3d 252, 254 [2005]; see also Feder v Tower Air, Inc., 12 AD3d 190, 191 [2004]).

Richard M. Greenberg, Office of The Appellate Defender, New York (Matthew L. Mazur of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), for respondent.

_________________________

Judgment, Supreme Court, New York County (Robert H. Straus, J. at hearing; Robert Stolz, J. at plea and sentencing), rendered July 8, 2009, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to a term of 2½ years, unanimously affirmed.

Since the record does not establish that the court ever issued an order finally denying defendant’s motion to suppress physical evidence, the issue is forfeited by his guilty plea (see CPL 710.70[2]; People v Fernandez, 67 NY2d 686, 688 [1986]). In any event, regardless of whether defendant’s suppression claims are properly before this Court, we have conducted an in camera review of the minutes of the hearing conducted pursuant to People v Darden (34 NY2d 177 [1974]). After reviewing those minutes and all of the arguments raised by defendant on appeal, we find no basis for suppression.

We adhere to our prior decision in which we denied defendant’s motion for disclosure of the sealed hearing minutes and similar relief (M-4108, 2010 NY Slip Op 85328[U] [Oct 19, 2010]).

Tamara A. Steckler, The Legal Aid Society, New York (Raymond E.

Rogers of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for presentment agency.

_________________________

Order of disposition, Family Court, Bronx County (Allen G.

Alpert, J.), entered on or about August 3, 2010, which adjudicated appellant a juvenile delinquent upon his admission that he committed the act of unlawful possession of a weapon by a person under 16, and placed him on probation for a period of 12 months, unanimously affirmed, without costs.



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