Bombay Industries, Inc. v. Bank of New York , 649 N.Y.S.2d 784 ( 1996 )

Kupferman, J., dissents in a memorandum as follows:

The majority’s cryptic analysis avoids the telling aspect of the situation here.

Plaintiff was the beneficiary of an irrevocable letter of credit from defendant bank pursuant to a sales agreement whereby plaintiff was to ship a substantial amount of men’s shirts and shorts.

The letter of credit required shipment of the goods "From New Jersey Port”. The plaintiff shipped the goods from its facility in New York. The purchaser waived the difference in point of origin, and in other respects all was satisfactory.

Obviously, the discrepancy was of no moment (cf., LGD Assocs. v Hastingwood Trading, 220 AD2d 350 [minor amendment of lis pendens does not impair its validity]). Moreover, in the past the bank had made payments despite an identical discrepancy.

The implication is that the bank had a problem with the purchaser’s general debt to the bank and was using this situation as leverage. Whether or not that is so, this plaintiff is an innocent party who made delivery acceptable to its purchaser.

The bank should not be permitted to substitute its own agenda.