Peritore v. Anna & Diane Cab Corp.

Apr 30, 2015
14980 154738/12
Versions:127 A.D.3d 669
6 N.Y.S.3d 475

MP FASHION INC., Appellant, v WOORI AMERICA BANK, Respondent. [6 NYS3d 475]—Judgment, Supreme Court, New York County (Jeffrey K. Oing, J.), entered August 27, 2014, which dismissed the complaint at the close of plaintiff‘s evidence, and brings up for review an order, same court and Justice, entered on or about September 13, 2013, which, to the extent appealed from, denied plaintiff‘s cross motion for summary judgment, unanimously affirmed, with costs. Appeal from aforementioned order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The question whether plaintiff‘s presented documents were in strict compliance with the letter of credit is one of law, which the motion court should have considered based on the documents themselves, independent of any disputes or questions of fact concerning the underlying transaction (Banco Nacional De México, S.A., Integrante Del Grupo Financiero Banamex v Societe Generale, 34 AD3d 124, 128-129 [1st Dept 2006]). Plaintiff‘s documents were not in strict conformity with the letter of credit (United Commodities-Greece v Fidelity Intl. Bank, 64 NY2d 449, 455 [1985]), and, therefore, the dismissal of the complaint, although rendered at trial, rather than on summary judgment, was proper. Concur—Acosta, J.P., Saxe, DeGrasse and Richter, JJ.