Seashells, Inc. v. Bridge Art Productions, Inc.

172 A.D.2d 353

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 23, 1991
• Status: Published

Opinions

Orders, Supreme Court, New York County (Leonard N. Cohen, J.), entered on or about June 28, 1990 and October 24, 1990, which, inter alia, respectively, granted the motion of defendants Bridge Art Productions, Inc. and Angel Lopez Orensanz to vacate their default and granted in part and denied in part plaintiffs motion for summary judgment, affirmed, without costs.

The IAS Court was not precluded from exercising its discretion to vacate defendants’ default in answering plaintiff’s motion for summary judgment and restoring the matter to the motion calendar as here, where the default was inadvertently occasioned by confusion generated by the substitution of attorneys. The papers supporting defendants’ motion to vacate the default were sufficient to make a prima facie showing of legal merit (Picotte Realty v Aragona, 87 AD2d 955, 956).

With respect to the motion for summary judgment, defendants-respondents asserted that they paid in excess of $374,000 on the $400,000 mortgage herein. Defendant Angel Lopez Orensanz submitted an additional affidavit and schedule of payments indicating that plaintiff demanded and was paid interest in excess of the statutory limitations as outlined pursuant to Penal Law § 190.40 for several months preceding the April 1987 default in payment alleged in plaintiff’s complaint. The record does not conclusively support plaintiffs contention that such payments which defendants assert were for interest above the legally proscribed rate, were made pursuant to additional or subsequent agreements, and as such, there is an issue of fact with regard to whether or not plaintiff purported to exact such payments pursuant to the terms of the original agreement. Concur—Murphy, P. J., Ross and Asch, JJ.