Opinion
August 10, 1990
Appeal from the Supreme Court, Nassau County, Roncallo, J.
Present — Doerr, J.P., Boomer, Lawton, Davis and Lowery, JJ.
Order unanimously reversed on the law without costs and motion denied. Memorandum: Summary judgment was improperly granted. There is a question of fact whether this loan, although in corporate form, was made to an individual (see, Schneider v Phelps, 41 N.Y.2d 238, 241-242; Jenkins v Moyse, 254 N.Y. 319, 324; Kaye v Keret, 89 A.D.2d 885, 886; Shapiro v Weissman, 7 A.D.2d 752, 753). Moreover, even if this were a loan to a corporation, there is a question of fact whether this transaction violated the criminal usury statute (Penal Law § 190.40). In addition to the interest rate of 24% called for in the note, the amount of $11,250, which plaintiff's president characterized as a "lender's fee", was charged and paid out of the proceeds of the loan. Plaintiff offered no proof concerning the nature of that fee.