National Bank v. Graham

Appellate Division of the Supreme Court of New York

National Bank v. Graham

83 A.D.2d 771, 443 N.Y.S.2d 473, 1981 N.Y. App. Div. LEXIS 15100

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

DecidedJuly 9, 1981

StatusPublished

This text of 83 A.D.2d 771 (National Bank v. Graham) 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

National Bank v. Graham, 83 A.D.2d 771, 443 N.Y.S.2d 473, 1981 N.Y. App. Div. LEXIS 15100 (N.Y. Ct. App. 1981).

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Opinion

Order unanimously affirmed, with costs, for the reasons stated in the memorandum decision at Supreme Court, Jefferson County, Sullivan, J. Memorandum: We add only the following. The judgment awarded plaintiff the balance due on loans made by it under an overdraft-checking agreement (Banking Law, § 108, subd 5, par [a]). Although it need not be reviewed (Telmark, Inc. v National Commercial Bank & Trust Co., 73 AD2d 777), we find nonetheless that defendants’ claim of usury, raised for the first time on appeal, is without merit (Brown v First Nat. City Bank, 503 F2d 114; American Express Co. v Brown, 392 F Supp 235). Nor did the court err in granting summary judgment where, as here, plaintiff’s prior motion for the same relief was denied “without prejudice”. In those circumstances, this motion required a showing of newly discovered evidence (Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:21, 1980-1981 Pocket Part, p 82). Plaintiff satisfied that burden and demonstrated that a trial of the action was unwarranted. (Appeal from order of Jefferson Supreme Court, Sullivan, J. — summary judgment.) Present — Dillon, P. J., Callahan, Doerr, Moule and Schnepp, JJ.

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Order unanimously affirmed, with costs, for the reasons stated in the memorandum decision at Supreme Court, Jefferson County, Sullivan, J. Memorandum: We add only the following. The judgment awarded plaintiff the balance due on loans made by it under an overdraft-checking agreement (Banking Law, § 108, subd 5, par [a]). Although it need not be reviewed (Telmark, Inc. v National Commercial Bank & Trust Co., 73 AD2d 777), we find nonetheless that defendants’ claim of usury, raised for the first time on appeal, is without merit (Brown v First Nat. City Bank, 503 F2d 114; American Express Co. v Brown, 392 F Supp 235). Nor did the court err in granting summary judgment where, as here, plaintiff’s prior motion for the same relief was denied “without prejudice”. In those circumstances, this motion required a showing of newly discovered evidence (Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:21, 1980-1981 Pocket Part, p 82). Plaintiff satisfied that burden and demonstrated that a trial of the action was unwarranted. (Appeal from order of Jefferson Supreme Court, Sullivan, J. — summary judgment.) Present — Dillon, P. J., Callahan, Doerr, Moule and Schnepp, JJ.

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Bluebook (online)

83 A.D.2d 771, 443 N.Y.S.2d 473, 1981 N.Y. App. Div. LEXIS 15100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-bank-v-graham-nyappdiv-1981.

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