Babinsky v. Skidanov

Appellate Division of the Supreme Court of New York

Babinsky v. Skidanov

12 A.D.3d 271, 784 N.Y.S.2d 540, 2004 N.Y. App. Div. LEXIS 13752

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 18, 2004

StatusPublished

Cited by3 cases

This text of 12 A.D.3d 271 (Babinsky v. Skidanov) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Babinsky v. Skidanov, 12 A.D.3d 271, 784 N.Y.S.2d 540, 2004 N.Y. App. Div. LEXIS 13752 (N.Y. Ct. App. 2004).

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Opinion

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered September 11, 2003, which, in a mortgage foreclosure action, insofar as appealed from, denied plaintiffs motion for summary judgment appointing a referee to compute and striking defendant-respondent mortgagor’s counterclaims seeking, inter alia, a declaration that the mortgage note is usurious, unanimously affirmed, with costs.

The motion court correctly held that even if the note were exempt from the defense of civil usury because given in connection with a purchase-money mortgage, it remains subject to the defense of criminal usury (see C & M Air Sys. v Custom Land Dev. Group II, 262 AD2d 440, 440-441 [1999]), and that an issue of fact as to criminal usurious intent is raised by the unexplained discrepancy between the amount stated on the note and the substantially lesser amount that defendant claims to have received from plaintiff (see Karas v Shur, 189 AD2d 856 [1993]). Concur—Mazzarelli, J.P., Andrias, Friedman, Marlow and Sweeny, JJ.

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Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered September 11, 2003, which, in a mortgage foreclosure action, insofar as appealed from, denied plaintiffs motion for summary judgment appointing a referee to compute and striking defendant-respondent mortgagor’s counterclaims seeking, inter alia, a declaration that the mortgage note is usurious, unanimously affirmed, with costs.

The motion court correctly held that even if the note were exempt from the defense of civil usury because given in connection with a purchase-money mortgage, it remains subject to the defense of criminal usury (see C & M Air Sys. v Custom Land Dev. Group II, 262 AD2d 440, 440-441 [1999]), and that an issue of fact as to criminal usurious intent is raised by the unexplained discrepancy between the amount stated on the note and the substantially lesser amount that defendant claims to have received from plaintiff (see Karas v Shur, 189 AD2d 856 [1993]). Concur—Mazzarelli, J.P., Andrias, Friedman, Marlow and Sweeny, JJ.

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Bluebook (online)

12 A.D.3d 271, 784 N.Y.S.2d 540, 2004 N.Y. App. Div. LEXIS 13752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/babinsky-v-skidanov-nyappdiv-2004.

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