Wallace v. Merrill Lynch Capital Services, Inc.

*383Order, Supreme Court, New York County (Bernard Fried, J.), entered December 15, 2005, which, in an action for breach of a currency swap contract, denied defendant-appellant’s motion to dismiss the complaint on the basis of documentary evidence, unanimously affirmed, with costs.

The documentary evidence establishes that TXU Europe’s guarantee of the bonds issued by TXU Eastern is contingent upon TXU Eastern’s defaulting on the bond payments, and that defendant’s right under the subject currency swap contract with TXU Europe to set off any obligations, whether mature or unmature, does not…