Hort v. Devine

Nov 20, 2003
Versions:1 A.D.3d 266
769 N.Y.S.2d 376
2003 N.Y. App. Div. LEXIS 12168

Order, Supreme Court, New York County (Charles Ramos, J.), entered July 1, 2003, which, to the extent appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The court properly denied defendant’s cross motion for summary judgment dismissing the complaint on the ground of usury. At the outset, we reject plaintiffs argument that the usury statute (Penal Law § 190.40) does not apply to this case. We further find that plaintiffs estoppel argument involves questions of fact to be raised at trial, and that defendant is not precluded, as a matter of law, from raising the defense of usury (see e.g. Pemper v Reifer, 264 AD2d 625 [1999]).

“[WJhere usury does not appear on the face of the note, usury is a question of fact” (Freitas v Geddes Sav. & Loan Assn., 63 NY2d 254, 262 [1984]). Here, usury does not appear on the face of the note, and defendant’s usury argument depends on evidence that is extrinsic to the note. Thus, summary judgment was properly denied (see Greenfield v Skydell, 186 AD2d 391 [1992]). Moreover, there are factual issues concerning usurious intent that also preclude summary judgment. Where the note, on its face, is not illegal, “[u]surious intent, an essential element of usury, ... is a question of fact,” and “a bona fide mistake of fact vitiates usurious intent” (Freitas, 63 NY2d at 262).

We have considered and rejected defendant’s remaining arguments. Concur—Tom, J.P., Saxe, Sullivan, Lerner and Friedman, JJ.