Urso v. Maritato

67 A.D.2d 1043, 413 N.Y.S.2d 493, 1979 N.Y. App. Div. LEXIS 10853

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 1979
• Status: Published

Opinion

—Appeal from so much of an order of the County Court of Albany County, entered August 4, 1977, which denied the cross motion of the defendant for summary judgment against the plaintiff. Plaintiff in this action seeks to recover $1,500 based upon a promissory note from the defendant to the plaintiff, payable on or before July 1, 1976, which payment has been refused. Defendant’s answer raised the affirmative defense of usury. Plaintiff moved for summary judgment and leave to amend her complaint while defendant cross-moved for summary judgment. Both parties were denied summary judgment and plaintiff was granted leave to amend her complaint. Defendant appeals from that portion of the order which denied his cross motion for summary judgment. It is fundamental that summary judgment should not be granted when there appears to be a material and triable issue of fact (CPLR 3212, subd [b]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Habinc v McTaggart, 54 AD2d 799). In the instant case, the record before us reveals that there is a question of fact concerning the actual amount of money loaned by plaintiff to defendant. The promissory note recites that defendant received $1,500, and this is also alleged in plaintiff’s complaint. However, defendant’s affidavit contends that he only borrowed $1,200. Since the amount of money loaned is crucial in computing the interest rate charged and determining whether the transaction was usurious, summary judgment was correctly denied to defendant. Order affirmed, with costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.