ASR LEVENSVERZEKERING NV plf-ap, v. BREITHORN ABS FUNDING P.L.C., ET AL. def, SWISS RE FINANCIAL PRODUCTS CORPORATION, ET AL., def-res

8065-8065A. ASR LEVENSVERZEKERING NV plf-ap, v. BREITHORN ABS FUNDING P.L.C., ET AL. def, SWISS RE FINANCIAL PRODUCTS CORPORATION, ET AL., def-res — Motley Rice LLC, New York (William H. Narwold of counsel), for ap — Quinn Emanuel Urquhart & Sullivan, LLP, New York (Phillipe Z Selendy of counsel), for Swiss Re Financial Products Corporation, res — Satterlee Stephens Burke & Burke LLP, New York (James Regan of counsel), for Bank of New York Mellon Corporation, res — Judgment, Supreme Court, New York County (Barbara R. Kapnick, J.), entered December 5, 2011, dismissing the complaint as against defendants Swiss Re Financial Products Corporation and Bank of New York Mellon Corporation, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered October 17, 2011, which granted said defendants' motion to dismiss, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

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8065-8065A. ASR LEVENSVERZEKERING NV plf-ap, v. BREITHORN ABS FUNDING P.L.C., ET AL. def, SWISS RE FINANCIAL PRODUCTS CORPORATION, ET AL., def-res — Motley Rice LLC, New York (William H. Narwold of counsel), for ap — Quinn Emanuel Urquhart & Sullivan, LLP, New York (Phillipe Z Selendy of counsel), for Swiss Re Financial Products Corporation, res — Satterlee Stephens Burke & Burke LLP, New York (James Regan of counsel), for Bank of New York Mellon Corporation, res — Judgment, Supreme Court, New York County (Barbara R. Kapnick, J.), entered December 5, 2011, dismissing the complaint as against defendants Swiss Re Financial Products Corporation and Bank of New York Mellon Corporation, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered October 17, 2011, which granted said defendants’ motion to dismiss, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiffs’ breach of contract and breach of the covenant of good faith and fair dealing claims were correctly dismissed since plaintiffs failed to show that they were third-party beneficiaries of any of the agreements relating to the credit default swaps (CDS) or credit default obligations (CDO) (see Edge Mgt. Consulting, Inc. v. Blank, 25 AD3d 364, 368 [2006], lv dismissed 7 NY3d 864 [2006]). As an initial matter, the “for the benefit of” language in the agreements at issue refers solely to the issuer’s assignment of its rights in the CDS to defendant Bank of New York Mellon Corporation (BNY), as indenture trustee, and defendant Swiss Re Financial Products Corporation’s confirmation that it agreed with the assignment. Thus, the only thing that was done “for the benefit” of plaintiffs, directly or indirectly, was the issuer’s assignment of its rights in the CDS to BNY. More substantively, any benefit conferred on plaintiffs under the agreements is merely incidental. The agreements in which plaintiffs are mentioned state that the assignment is for the express benefit of the signatories.

ASR LEVENSVERZEKERING NV plf-ap, v. BREITHORN ABS FUNDING P.L.C., ET AL. def, SWISS RE FINANCIAL PRODUCTS CORPORATION, ET AL., def-res

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