Bank of New York v. Bank of America

Order, Supreme Court, New York County (Herman Cahn, J.), entered June 12, 1997, which, insofar as appealed from, denied plaintiffs’ motion for summary judgment, unanimously affirmed, with costs.

The motion court correctly held that a ruling by the Australian courts that New South Wales is a forum non conveniens for the parties’ dispute does not operate as res judicata and collateral estoppel on the merits of whether plaintiffs herein, who were the defendants in Australia, breached the agreement in issue. In the latter regard, issues of fact remain unresolved, particularly as to whether plaintiffs acted in good faith and expended their best efforts to consummate the transaction.

Concur — Nardelli, J. P., Wallach, Williams and Mazzarelli, JJ.