Bietola v. McCue

Sep 30, 2003
Versions:308 A.D.2d 416
764 N.Y.S.2d 692
2003 N.Y. App. Div. LEXIS 9972

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about January 10, 2003, which, inter alia, granted the respective cross motions of defendant Towe and third-party defendant J.P. Morgan Chase & Co. for summary judgment dismissing the complaint and third-party complaint, unanimously affirmed, with costs.

Plaintiff is precluded from any recovery on this two-month loan, because the contracted rate of interest of 25% was clearly *417in violation of the prohibition against usury (see General Obligations Law § 5-501 et seq.; Banking Law § 14-a; Seidel v 18 E. 17th St. Owners, 79 NY2d 735, 740 [1992]). Equally specious is plaintiff’s effort to convert this action against defendant Towe into one for money had and received. Towe never received the money; it had disappeared into the hands of his unscrupulous former attorney-in-fact long before he was even aware that the money had fleetingly passed through his account.

We have considered plaintiff’s remaining arguments and find them unavailing. Concur — Tom, J.P., Sullivan, Rosenberger, Lerner and Friedman, JJ.