58 A.D.2d 1040 | N.Y. App. Div. | 1977
Order unanimously affirmed, with costs. Memorandum: Defendant, owner and operator of Stereo Car Radio in Syracuse, appeals both a summary judgment granted on plaintiff’s motion in the amount of $1,438.78 due for the cost of goods sold on an open account, and the denial of his cross motion for leave to amend his answer so as to raise the defense of usury and to include a counterclaim based thereon. Plaintiff supplies defendant’s business with Quasar television sets and parts. Special Term denied plaintiff’s motion with respect to service charges allegedly due in the amount of $155.59. Plaintiff’s moving affidavit contained copies of the ledger sheets showing a debit balance in defendant’s account of $1,594.37. Defendant’s answer was a general denial. His answering affidavit neither provided documentary evidence disputing plaintiff’s statement of the account, nor specifically denied the stated amount due. But for the alleged defense of usury, summary judgment would unquestionably have been proper. A general denial is insufficient (see Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255; Indig v Finkelstein, 23 NY2d 728; Beck v Greinert, 29 AD2d 712). Defendant claims on appeal that even if the debt is not usurious, it would constitute a revolving charge account in violation of New York’s Retail Installment Sales Act (Personal Property Law, § 401 et seq.). He contends alternatively that the transactions sued on are a "loan or forbearance of * * * money, goods, or things in action” so as to be subject to the usury provisions of section 5-501 of the General Obligations Law. The defendant’s arguments lack merit. The Retail Installment Sales Act is