The plaintiffs and appellants in the matter are B.B.C.F.D., S.A., etc., et al. The defendants and respondents in the case are Bank Julius Baer & Co. Ltd., et al., and Mina Persyko. The case is being heard in the First Department, Appellate Division of the Supreme Court of the State of New York.
The plaintiff in this matter is seeking to appeal a verdict that was made on the 7th of November, 2008. The previous order dismissed some of the claims that were made by the plaintiff and denied the motion from the plaintiff to recall and modify the complaint.
The matter in this case has been previously presented to this court. The question in the court today is whether or not the prior decision made by the court limited the issues that were to be addressed on remand in the matter. The plaintiffs state that by granting a partial summary judgment in the case that they can still challenge the applicability of the statute of repose.
The review of the previous decision shows that any of the claims that involved fund transfers (white collar crime) as they are defined by the statute are time-barred and were resolved during the first appeal in the case.
The plaintiff is a corporation from Panama and the principal of the corporation is Bijan Nassi. In 1985, the plaintiff turned over power of attorney, which included the right to withdraw funds, to Yehuda Shiv. At the direction of the plaintiff the defendant Bank Juilius Baer sent monthly statements to Shiv directly.
In September of 2001, Shiv was sued by the United States Securities and Exchange Commission. This case was brought against Shiv for defrauding numerous investment companies. Shiv was criminally prosecuted and while serving his sentence he passed away in 2004.
The plaintiffs started this action against the defendants in 2003 to seek recovery for unauthorized withdrawals that were made by Shiv from the B.B.C.F.D. account. The amount was over $20,000,000. Most of the withdrawals were made when Shiv told the bank to wire money from the B.B.C.F.D. account into other accounts. The transfers were all listed on the monthly statements from the account. There were 139 of these withdrawals that were affected by instructing the bank to wire money from the account at B.B.C.F.D. without a negotiable instrument or check.
The Bank moved for a partial summary judgment in the case in October, 2006 stating that repose required the plaintiffs to make any complaints about unauthorized funds transfers within a year of receiving notification. The plaintiffs argued that Shiv did forward the bank statements to them, but they were simplified and the simplified forms concealed the fraud.
In April of 2007 the court denied the motion for summary judgment. This court reversed that order and granted summary judgment to the defendants in 2008.
The court has reviewed the case and the previous judgments that were made in the matter. The court orders that the plaintiffs claims are affirmed with costs and the appeal that denied the plaintiffs motion to recall and modify are dismissed without costs.
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