Schaaf v. Borsher

82 A.D.2d 880, 440 N.Y.S.2d 312, 1981 N.Y. App. Div. LEXIS 14579

Opinion

In an action on a promissory note, commenced by service of a summons with notice of motion for summary judgment in lieu of complaint, the plaintiff appeals from an order of the Supreme Court, Nassau County (Altimari, J.), dated February 6, 1981, which denied his motion for summary judgment and granted the defendant’s cross motion for security for costs. Order reversed, on the law, with $50 costs and disbursements, motion granted, cross motion denied as academic, and plaintiff is granted judgment against the defendant for the sum of $15,085.17, together with interest from July 1,1980. The circumstances of this case present no triable issues of fact. There is no evidence that the transaction at issue was other than an investment from which the plaintiff was to have received a fixed share of the profits, as opposed to a “loan or forbearance” within the meaning of subdivision 1 of section 5-501 of the General Obligations Law. A usurious agreement will not be presumed from facts equally consistent with a lawful purpose (Grannis v Stevens, 216 NY 583). The defendant, an attorney, should be estopped from asserting the defense of usury where he has induced the plaintiff’s reliance, arranged the terms of the investment, and actually drawn up the promissory note sued upon. Titone, J.P., Lazer, Weinstein and Thompson, JJ., concur.