Arbuzova v. Skalet

92 A.D.3d 816, 938 N.Y.2d 811

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 2012
• Status: Published

Opinion

A corporation is prohibited from asserting the defense of civil usury (see General Obligations Law § 5-521; Schneider v Phelps, 41 NY2d 238, 242 [1977]; Tower Funding v Berry Realty, 302 AD2d 513, 514 [2003]). An individual guarantor of a corporate obligation is also precluded from raising such a defense (see Schneider v Phelps, 41 NY2d at 242; Tower Funding v Berry Realty, 302 AD2d at 514). Here, although the interest rate in the subject promissory note exceeded 16% per annum (see General Obligations Law § 5-501 [1], [2]; Banking Law § 14-a [1]; Tower Funding v Berry Realty, 302 AD2d at 514), the plaintiff established, prima facie, that the loan was made to the corporate defendant, Bais Seller Realty, with the defendant Yury Skalet as personal guarantor of the loan (see Tower Funding v Berry Realty, 302 AD2d at 514). In opposition to this prima facie showing, the defendants failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on her complaint and denied the defendants’ cross motion for summary judgment dismissing the complaint. Dillon, J.E, Florio, Chambers and Roman, JJ., concur.