The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83 were read on this motion to/for INJUNCTION/RESTRAINING ORDER. DECISION + ORDER ON MOTION Upon the foregoing documents, it is Petitioner Strabag, SPA (Strabag) moves, pursuant to CPLR 7502, (1) for an order granting “an attachment against any and all funds withdrawn from the Letter of Credit issued by non-party Credit Agricole CIB (LC 813738025 / KDEAM02999)” (Letter of Credit) and (2) “enjoining and restraining respondents Alto Maipo and Itau and their respective agents, servants, employees and all others acting in concert with or on their behalf and all others having notice of this application, from: (a) depositing the funds withdrawn against the Letter of Credit from non-party Credit Agricole CIB into any account other than the Insurance Proceeds and Compensation Account; and (b) disbursing, transferring, liquidating, encumbering, depleting, or otherwise causing the disbursement, transfer, liquidation, encumbrance, or depletion of, the funds drawn against the Letter of Credit during the pendency of the underlying arbitration between Strabag and Alto Maipo and Strabag’s appeal of the First Department Appellate Division’s order dated November 9, 2023 [Case No. 2023-02383] before the New York Court of Appeals.”1 (NYSCEF 2, Proposed OSC [mot. seq. no. 001].) The court’s prior decision in the initial action (650865/2023) provides a detailed account of the dispute, which will be supplemented as necessary for this motion.2 (NYSCEF 13, April 8, 2023 Decision in Index No. 650865/2023.) On February 17, 2023, this court issued a TRO restraining Credit Agricole from honoring Alto Maipo’s draw on the Letter of Credit. On April 8, 2023, this court issued a preliminary injunction, under Section 15.3.4 of the Amended & Restated Contract, which provides that Alto Maipo may only draw on the Letter of Credit “(a) to pay any Late Critical Milestone Payments owed and unpaid by Contractor or (b) in case of any Contractor Event of Default in an aggregate amount not to exceed the amount that Owner reasonably believes would be payable to it in respect of all of its remedies hereunder,” restraining Alto Maipo’s draw on the letter of credit. (Id. at 7-8.) This court concluded “that Strabag successfully demonstrated a likelihood of success on the merits with respect to its ‘fraud in the transaction’ claim”…because “[w]hen a contract provision is crystal clear, as Amendment 2 is here, but a party effectively denies that provision’s applicability based on something that has yet to happen, this basic contract dispute becomes fraud.” (Id. at 18-19.) On November 9, 2023, the Appellate Division, First Department vacated the preliminary injunction. (NYSCEF 15, Strabag, Spa v. Credit Agricole CIB, 2023 NY Slip Op 05671 [1st Dept Nov. 9, 2023].) On November 13, 2023, Credit Agricole processed Alto Maipo’s withdrawal request and transferred $90 million to Alto Maipo.3 (NYSCEF 83, Hageman4 aff 7.) The funds were deposited at Itau’ Corpbanca in the Project’s Disbursement account (id.), not its insurance proceeds and compensation account as Strabag insists. On November 14, 2023, the Court of Appeals issued an interim stay of the Appellate Division’s decision, effectively re-instituting this court’s preliminary injunction. (NYSCEF 15, Court of Appeals Order.) The Arbitrations On February 15, 2023, Alto Maipo filed a Request for Arbitration with the ICC alleging breach of contract for Strabag’s failures to perform in accordance with the contracts (ICC Case No. 27592/PDP). (NYSCEF 16, Alto Maipo’s Answer and Counterclaim 29 [ICC Arbitration].) Strabag filed a Request for Arbitration on March 1, 2023, which is not before the court. Rather, all the court knows about this request is that the relief requested is stated in paragraphs 125 and 126 of Strabag’s Request. (NYSCEF 16, Strabag’s Reply to Alto Maipo’s Answer and Counterclaim 72[i].) Alto Maipo counterclaimed for breach of contract, and specifically, failure to achieve substantial completion. (NYSCEF 16, Alto Maipo’s Answer and Counterclaim
