Federal Deposit Insurance v. Cristo Realty, Inc.

72 A.D.2d 553, 420 N.Y.S.2d 767, 1979 N.Y. App. Div. LEXIS 13622

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1979
• Status: Published

Opinion

In an action on two promissory notes and against the guarantors thereof, plaintiff appeals from so much of a judgment of the Supreme Court, Nassau County, entered April 10, 1979, as, upon plaintiff’s motion for summary judgment, awarded it judgment against defendants Cristo Realty, Inc., and Eduardo Cristo for less than the amount demanded and severed its claims for interest and attorneys’ fees. Judgment reversed insofar as appealed from, on the law, with $50 costs and disbursements, plaintiff’s motion is granted in its entirety, including interest and attorney’s fees, and the matter is remitted to the Supreme Court, Nassau County, for a determination of damages. Although the promissory notes were made by the corporate respondent, it is respondents’ contention that the loans in question were actually advanced for the personal use of Eduardo Cristo, the corporation president. Documentary evidence submitted by plaintiff in support of its motion for summary judgment demonstrates that the loan proceeds, although in form payable to Eduardo Cristo personally (and not the corporate maker of the notes), were used by Cristo for business purposes, for which they were intended, including the purchase of real property on behalf of the corporate defendant. Accordingly, the loans were not usurious (see Schneider v Phelps, 41 NY2d 238; Leader v Dinkier Mgt. Corp., 20 NY2d 393). The conclusory allegations of the respondents that the loans were "personal” are insufficient to create a triable issue of fact (see Federal Deposit Ins. Corp. v Salesmen Unlimited Agency Corp., 61 AD2d 1023). Damiani, J. P., O’Connor, Lazer and Margett, JJ., concur.