INDEX NO. 654109/2015
`FILED: NEW YORK COUNTY CLERK 08/14/2018 04:34 PM
`FILED: NEW YORK COUNTY CLERK 08m2018 04:34 PM
`INDEX NO- 654109/2015
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`NYSCEF DOC. NO. 221
`R«.C«.IV«.D \IYSCEF: 08/14/2018
`NYSCEF DOC. NO. 221
`RECEIVED NYSCEF: 08/14/2018
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
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`....................................................................X
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`BANCO INDUSVAL S.A.,
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`Plaintiff,
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`-against—
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`ANTONIO CARLOS GONCALVES JR.,
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`Defendant.
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`AFFIRMATION OF
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`ARTHUR BIRAL
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`Motion Seg. No. 010
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`Index No. 654109/2015
`(Kotler, J.)
`Part 8
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`I, ARTHUR BIRAL, affirm the following pursuant to Rule 2106(b) of the Civil Practice Law
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`and Rules:
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`1.
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`I am a citizen of the Federative Republic of Brazil (“Brazil”) and an advogado
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`(attorney) admitted to practice law nationwide in Brazil.
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`I am a partner in the law firm Biral
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`Advogados, with offices at Rua Antonio Lapa, N0 280—8“ Andar — Campinas SP — CEP:
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`13025-240.
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`I have been admitted to the practice of law in Brazil since 2006. Our firm and I are
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`legal counsel in Brazil to the above-referenced defendant, ANTONIO CARLOS GON CALVES
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`JR. (“Mn GONCALVES” or “Defendant").
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`2.
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`I have personal knowledge of the facts and circumstances set forth herein, unless
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`otherwise stated.
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`3.
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`I make this affirmation in opposition to the application of Plaintiff BANCO
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`INDUSVAL, S.A. (“Bl&P” or “‘Plaintiff’), brought on by an Order to Show Cause, entered July
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`6, 2018 (NYSCEF Doc. No. 213), seeking the entry of an Order, pursuant to Sections 2221(e),
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`3205(b), 5302-5305 and 6220 of the New York Civil Practice Law and Rules (“CPLR”) and
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`Section 216.1 of the Uniform Rules for the Trial Cou1ts, granting the following relief to Plaintiff:
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`INDEX NO. 654109/2015
`FILED: NEW YORK COUNTY CLERK 08/14/2018 04:34 PM
`FILED: NEW YORK COUNTY CLERK 08m2018 04:34 PM
`INDEX NO- 654109/2015
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`NYSCEF DOC. NO. 221
`R«.C«.IV«.D \IYSCEF: 08/14/2018
`NYSCEF DOC. NO. 221
`RECEIVED NYSCEF: 08/14/2018
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`(a)
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`(b)
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`(c)
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`(d)
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`(e)
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`Granting Plaintiff leave to supplement its Complaint:
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`Authorizing the recognition and enforcement ofa foreign court
`judgment against Defendant;
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`Granting leave to renew Plaintiff’s Motion for Disclosure in Aid
`of Attachment (Motion Seq. No. 007);
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`Directing Defendant and non—party garnishee Safra National
`Bank (“Safra”) to provide disclosure to Plaintiff concerning any
`property in which the Defendant has an interest or any debts
`owing to the Defendant:
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`Authorizing the filing and placing under seal of Exhibits 1 and 2
`to the affirmation of Alberto Neri Duarte Junior (with each such
`exhibit‘s respective translation) and of Plaintiff’s Memorandum
`of Law containing descriptions of such exhibits. and permitting
`Plaintiff to file on the public docket a redacted Memorandum of
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`Law; and
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`(f)
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`Granting to Plaintiff such other and further relief as may be just,
`proper and equitable.
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`4.
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`For the reasons set forth herein, and in the accompanying Memorandum of Law
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`of Defendant’s counsel, I respectfully submit that Plaintiff’s motion should be denied.
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`5.
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`As this Couit is well aware, Mr. GONCALVES had a banking relationship in
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`Brazil with Plaintiff. During the course of that relationship, Mr. GONCALVES and I as his legal
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`counsel corresponded via email with certain officers and employees of BI&P, including, inter
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`alia, Alberto Neri Duarte Junior, Esq. (“Mr Duarte”). Mr. Duarte has provided a sealed
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`Affirmation in support of Plaintiffs Motion for Renewal of Its Motion for Disclosure (ECF Doc.
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`No. 209), with exhibits that purport to be “[p]rinted copies of emails between [me]t and a
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`representative of Safra National Bank in New York, plus attachments to those emails."
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`INDEX NO. 654109/2015
`FILED: NEW YORK COUNTY CLERK 08/14/2018 04:34 PM
`FILED: NEW YORK COUNTY CLERK 08m2018 04:34 PM
`INDEX NO- 654109/2015
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`NYSCEF DOC. NO. 221
`R«.C«.IV«.D \IYSCEF: 08/14/2018
`NYSCEF DOC. NO. 221
`RECEIVED NYSCEF: 08/14/2018
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`6.
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`Attached hereto as Exhibit “A—l” is a copy in Portuguese of an e-mail chain on
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`March 12, 2015. on which Mr. GONCALVES and I were copied, and that included Mr. Duarte
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`and other employees of BI&P’s Legal Department. The English translation of Exhibit “A-l” is
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`attached as Exhibit “A-2”, and the Certification for the translation is attached as Exhibit “A—3”.
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`7.
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`BI&P placed a Notice at the end of the chain (last page) that reads as follows:
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`The information contained in this email and its attachments
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`are for restricted use only and its confidentiality is protected by
`law. If you have received this message in error, please ignore it.
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`8.
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`Thus, BI&P regarded its emails with its customers as confidential and private
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`communications, and so notified any recipients, and Mr. Duarte, who was, and apparently still is,
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`in the Legal Department of BI&P, presumably was well aware of that fact.
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`9.
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`Similarly, Safra put the following notice on its emails that are included in Exhibits
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`“1” and “2” to Mr. Duarte’s Affirmation:
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`This communication and its content are for informational and
`educational purposes only and should not be used as the basis for any
`investment decision. The information contained herein is based on
`publicly available sources believed to be reliable but not a
`representation, expressed or implied, s to its accuracy, completeness or
`correctness. No information available through this communication is
`intended or should be construed as any advice, recommendation or
`endorsement from us as to any legal, tax, investment or other matters.
`Nothing in this communication shall be considered a solicitation or offer
`to buy or sell any security, future, option or other financial instrument or
`to offer or provide any investment advice or service to any person in any
`jurisdiction. Nothing contained in this communication constitutes
`investment advice or offers any opinion with respect to the suitability of
`any security. This information has no regard to the specific investment
`objectives, financial situation and particular needs of any specific
`recipient.
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`This message and any attachments are solely for the intended
`recipient and may contain confidential or privileged information. If
`you are not the intended recipient, any disclosure, copying, use, or
`distribution of the information included in this message and any
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`attachments is prohibited. Ifyou have received this communication
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`INDEX NO. 654109/2015
`FILED: NEW YORK COUNTY CLERK 08/14/2018 04:34 PM
`INDEX NO- 654109/2015
`FILED: NEW YORK COUNTY CLERK 08m2018 04:34 PM
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`NYSCEF DOC. NO. 221
`R«.C«.IV«.D \IYSCEF: 08/14/2018
`NYSCEF DOC. NO. 221
`RECEIVED NYSCEF: 08/14/2018
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`in error, please notify us by reply e-mail and immediately and
`permanently delete this message and any attachments. Thank you.
`(Emphasis added)
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`10.
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`Therefore, Mr. Duarte, as well as the "local manager of the branch” ofBI&P”
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`who purportedly received the envelope with the emails and attachments after it was allegedly
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`“dropped off" by the “unknown individual”, were on notice by another banking institution, Safra,
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`that since they (and their employer, BI&P) were not the “intended recipient”, the emails, which
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`contained confidential and privileged information, they were prohibited from “any disclosure.
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`copying, use, or distribution of the information included in [the email] message and any
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`attachments.”
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`ll.
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`Notwithstanding the foregoing, BI&P now disregards Safra‘s clear and
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`unequivocal notice, and illicitly seeks to use these purloined documents against Mr.
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`GONCALVES on the motion before the Court.
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`I respectfully submit that this Honorable Court
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`should not countenance such wrongful conduct, and that, therefore, the motion for renewal of
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`disclosure should be denied.
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`12.
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`Accordingly, in view of the foregoing, it is respectfully submitted that Plaintiff’s
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`motion should be denied in all respects.
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`I affirm, under the penalties of perjury under the laws of New York, which may include a
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`fine or imprisonment, that I am physically located outside the geographic boundaries of the
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`United States, Puerto Rico, the United States Virgin Islands, or any territory or insular
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`possession subject to the jurisdiction of the United States, that the foregoing is true, and I
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`understand that this document may be filed in an action or proceeding in a court of law.
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`Executed on August '15 2018 in Sio Paulo, Brazil.
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