48 A.D.2d 790 | N.Y. App. Div. | 1975
Order, Supreme Court, New York County, entered January 10, 1974, denying plaintiff’s motion for summary judgment in lieu of complaint, unanimously reversed, on the law, and the motion granted. Appellant shall recover of respondent $60 costs and disbursements of this appeal. Appeal from order of the Supreme Court, New York County, entered August 1, 1974, denying plaintiff’s motion for reargument unanimously dismissed as nonappealable, without costs or disbursements (Sklan v Sklan, 29 AD2d 526; United Artists Tel. v Quality Bakers of America Co-op, 27 AD2d 651). During the period of 1967 through 1970 plaintiff loaned to the defendant over $5 million. The loans were represented by promissory notes, payable on demand and in addition, each of the defendants executed written guarantees for payment to the plaintiff of the obligations of each of the' other defendants. The record establishes that there is an outstanding balance with respect to the above loans of $504,013.81, plus interest. Indeed, on the motion for summary judgment, defendants did not deny that such sum was not repaid but instead, asserted numerous affirmative defenses. A review of the record, however, establishes that those defenses were patently insufficient and failed to raise triable issues of fact. First, it is clear that the action was timely brought. In fact, most of the notes bear dates placing them well within the applicable period of limitations. And, those earlier notes to which the defense of the Statute of Limitations is apparently addressed, are no longer in issue since the debts underlying those notes have been extinguished as a result of plaintiff’s having properly resorted to its contractual remedy and applying proceeds obtained from the sale of collateral to retire the earlier notes (cf. House v Carr, 185 NY 453; Hulbert v Clark, 128 NY 295). Second, the defense of usury is unavailable under these facts. The loans involved herein come within the scope of subdivision 3 of section 108 of the Banking Law and accordingly, are exempt from the usury laws. Even with respect to those individual notes which were for amounts of less than $5,000, the defense of usury is not applicable. It is clear that each note herein was part of a series of loans, evidenced by collateral promissory notes containing cross-collateralization provisions and therefore, each note became part of one entire loan exceeding $5,000, and within the above provision of-the Banking Law (Irving Trust Co. v Smith, 349 F Supp 146). Third, the defense that the guarantees are not supported by consideration and therefore unenforceable is also without merit. The guarantees, which are in writing, were given upon the expressed past