Scarp v. March

55 A.D.2d 870, 390 N.Y.S.2d 119, 1977 N.Y. App. Div. LEXIS 10060

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 6, 1977
• Status: Published

Opinion

— Order, Supreme Court, New York County, entered on September 16, 1975, granting plaintiffs’ motion for summary judgment and the judgment entered thereon on October 2, 1975, unanimously reversed, on the law, with $60 costs to appellant March, the judgment vacated and said motion denied. On this motion for summary judgment in lieu of complaint (CPLR 3213), plaintiffs seek recovery of the unpaid principal balance of a series of notes which they allege were given in payment for their interest in a certain company. Appellant March, on the other hand, contends that the notes evidence usurious interest on a repaid loan. Appellant’s version of the transaction is supported by the notation of “interest” on checks given in partial payment of the notes sued upon and by his tax treatment (allegedly concurred in by plaintiffs) of such payments as deductible interest. In view of the sharp dispute as to the genesis of the notes," and the admissibility of parol evidence to establish appellant’s claim (Pink v Kaplan, 252 App Div 490), we conclude that summary relief was not warranted on the instant record. We further conclude that formal pleadings should be served in this action and so direct; with the complaint to be served within 20 days after service by appellant on respondents of a copy of the order entered hereon, with notice of entry, and the answer to be served within 20 days after service of such complaint. Concur — Murphy, J. P., Lupiano, Silverman, Capozzoli and Nunez, JJ.