Englishtown Sportswear, Ltd. v. Marine Midland Bank

97 A.D.2d 498, 467 N.Y.S.2d 693, 1983 N.Y. App. Div. LEXIS 20092

Opinion

In an action to recover interest paid at a rate allegedly in excess of the rate agreed to in the parties’ financing agreement, defendant appeals from so much of an order of the Supreme Court, Queens County (Kassoff, J.), dated May 4,1983, as denied its motion pursuant to CPLR 3211 (subd [a], par 5) and 3212 to dismiss the complaint as barred by the Statute of Limitations set forth in CPLR 215 (subd 6). Order affirmed, insofar as appealed from, with costs. According to the legislative history of CPLR 215 (subd 6), the one-year Statute of Limitations governing actions to recover on “overcharge of interest” was intended to apply only to usury actions (see Governor’s Memorandum, NY Legis Ann, 1968, pp 110-111; 1 Weinstein-Korn-Miller, NY Civ Prac, par 215.11). This is not a usury action, but rather is an action to recover for breach of the interest rate provision in the contract between the parties, plaintiff claiming that the defendant bank charged it an interest rate in excess of that specified in their agreement although not in violation of law. Pursuant to CPLR 213 (subd 2) there is a six-year Statute of Limitations for this contract action. Titone, J. P., Thompson, Bracken and Rubin, JJ., concur.