FILED: NEW YORK COUNTY CLERK 01//17 01:37 PM INDEX NO. 650082/17 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01//17 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART 49 X ART CAPITAL BERMUDA LTD., AND BLUEFIN SERVICING LTD, Plaintiffs, Index No: -against- 650082/17 THE BANK OF N.T.BUTTERFIELD AND SON LIMITED, DEFENDANT. 60 Centre Street 10 New York, New York 10007 January 12, 17 12 B E F O R E: THE HONORABLE 0. PETER SHERWOOD, 13 JUSTICE 14 APPEARANCE S: 15 PETER M. LEVINE Attorneys for the Plaintiffs. 16 i 444 Madison Avenue New York, NY 100 17 BY: Peter M. Levine, Esq. KASOWITZ, BENSON, TORRES & FRIEDMAN 19 Attorneys for the Defendant 1633 Broadway New York, NY 10019 BY: Charles M. Miller, Esq. 23 VANESSA MILLER Senior Court Reporter 1 of 5
today than was here before me earlier this week, I think that's this week, is the fact that you now have a affidavit from a Mr. Lowe? MR. MILLER: Mr. Lowe, yes. That's what's different? MR. MILLER: Registrar of Companies. Yes. Mr. Lowe is the Bermuda All right. Anything else I need 10 know? MR. MILLER: Not really, your Honor. 12 I do just want to update you that we have sent 13 out today a ten-day notice to the plaintiffs. I realize 14 that's not relevant strictly to this motion, but I did 15 want you to be aware that that aspect is moving forward. 16 Okay. Mr. Levine? All the facts upon which this motion is based were known 19 prior to January 9th, this our application for a TRO. and available to the defendant Monday, when your Honor heard All the documents upon which this application is based were known to and available to the defendant by January 9th; all the witnesses who have 23 sworn to affidavits on which this motion is based were known to and available to the defendant. Nothing new has been adduced; no new facts; no new documents; no new witnesses; no new evidence. There is no explanation 2 of 5
and it's up to them. again,. if I suppose that wasn't true as what's Mr. Lowe 's affidavit say? MR. MILLER: January 9th. As of January 9th, I suppose. Let me see what it says: Just for my own benefit. So according to Mr. Lowe, as of January 9th, 10 your client has not been reinstated; that's what it says. Okay. That's what he says. And 12 why couldn't he come in heke with a sworn affidavit on 13 January 9th and say that? This is not new evidence. 14 This is 15 No. I'm trying to understand a 16 representation that you made, Mr. Levine 17 Yes. just now that you are, your 19 words, back in the saddle. Yes. Because the fees have been paid. When? 23 I don't know. I said Today is the 12th. I understand. As of the 9th, according to Mr. 3 of 5
owed more money over, and above the claims for the servicing fees and the overpayment of interest, then the bank has a claim for money damages, not a claim for a injunctive relief. There's no irreparable harm and there's no basis grant this motion to the bank and dissolve the preliminary injunction. The motion for renewal is fundamentally defective because no new facts have been presented and 10 12 13 14 15 16 there's no justification for not have presented existing facts back when they were supposed to have been presented. And nothing that they say in their papers changes the result. The motion should be denied. If it's not going to be denied right now, then I would like an opportunity, while the preliminary injunction is still in place, to put in answering papers. 17 Okay. So I'm going to grant the 19 23 motion for leave to renew. And having so granted it, I'm going to deny the application to lift the injunction for the reason that you have not satisfied the requirements of CPLR (e), which says, "a motion to renew shall be identified specifically as such and shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate there has been a change in the law that will change the prior determination." 4 of 5
MR. MILLER: Proceedings And I don't know what else we could've done to have gotten that sort of Verification. The preliminary injunction the TRO will not be lifted. Thank you, gentlemen. Thank you. Thank you, your Honor. ********************************** CERTIFIED TO BE A TRUE AND ACCURATE TRANSCRIPT OF THE ORIGINAL STENOGRAPHIC MINUTES TAKEN OF THIS PROCEEDING. 10 12 13 14 15 16 17 19 23 V NESSA MILLER Senior Court Reporter 5 of 5