Bietola v. McCue

Appellate Division of the Supreme Court of New York

Bietola v. McCue

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

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

DecidedSeptember 30, 2003

StatusPublished

Cited by3 cases

This text of 308 A.D.2d 416 (Bietola v. McCue) 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

Bietola v. McCue, 308 A.D.2d 416, 764 N.Y.S.2d 692, 2003 N.Y. App. Div. LEXIS 9972 (N.Y. Ct. App. 2003).

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Opinion

—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 [417]*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.

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—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 [417]*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.

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Bluebook (online)

308 A.D.2d 416, 764 N.Y.S.2d 692, 2003 N.Y. App. Div. LEXIS 9972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bietola-v-mccue-nyappdiv-2003.

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