GEPHARDT v. MORGAN GUAR. TR. CO. OF NEW YORK

It is well settled that a defense based on documentary evidence can succeed if the documents submitted resolve all of the factual issues as a matter of law (Standard Chartered Bank v. D. Chabbott, Inc., 178 A.D.2d 112). The clear and unambiguous language contained in the documents relied on by the moving parties established not only the existence of fee schedules for the defendant depository institutions but defendants' entitlement to charge a service fee of $.03 per share for the issuance and cancellation of American Depository Receipts, a Federally regulated type of security representing ownership of securities issued by a foreign company.

Plaintiffs have not shown that the fees imposed were unconscionable or constituted a breach of an implied duty of good faith (see, Holmes Protection v. Provident Loan Socy., 179 A.D.2d 400).

Concur — Ellerin, J.P., Wallach, Asch and Rubin, JJ.