Opinion
2012-12-5
Bernadette PEPIN, et al., plaintiffs/counterclaim defendants-respondents-appellants, v. Vina JANI, defendant/counterclaim plaintiff-appellant-respondent; BJML, Inc., additional counterclaim defendant-respondent-appellant.
Vina Jani, Orangeburg, N.Y., defendant/counterclaim plaintiff-appellant-respondent pro se. Schwartz & Ponterio, PLLC, New York, N.Y. (Matthew F. Schwartz of counsel), for plaintiffs/counterclaim defendants-respondents-appellants and additional counterclaim defendant respondent-appellant.
Vina Jani, Orangeburg, N.Y., defendant/counterclaim plaintiff-appellant-respondent pro se. Schwartz & Ponterio, PLLC, New York, N.Y. (Matthew F. Schwartz of counsel), for plaintiffs/counterclaim defendants-respondents-appellants and additional counterclaim defendant respondent-appellant.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action, inter alia, for a judgment declaring, in effect, that a certain loan agreement is usurious, void, and unenforceable, the defendant/counterclaim plaintiff, Vina Jani, appeals from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated March 24, 2010, as denied the motion of the plaintiffs/counterclaim defendants for summary judgment on the complaint and dismissing the counterclaims insofar as asserted against them without prejudice to renew the motion following the completion of discovery, and the plaintiffs/counterclaim defendants and the additional/counterclaim defendant cross-appeal, as limited by their brief, from so much of the same order as denied the motion of the plaintiffs/counterclaim defendants for summary judgment on the complaint and dismissing the counterclaims asserted by Jani against the plaintiffs/counterclaim defendants.
ORDERED that the appeal by the defendant/counterclaim plaintiff is dismissed, without costs or disbursements, as the defendant/counterclaim plaintiff is not aggrieved by the portion of the order appealed from; and it is further,
ORDERED that the cross appeal by the additional counterclaim defendant is dismissed, without costs or disbursements, as the additional counterclaim defendant is not aggrieved by the order appealed from; and it is further,
ORDERED that the order is affirmed insofar as cross-appealed from by the plaintiffs/counterclaim defendants, without costs or disbursements.
The appeal by the defendant/counterclaim plaintiff, Vina Jani, from so much of the order as “denied without prejudice” the motion of the plaintiffs/counterclaim defendants (hereinafter collectively the movants) for summary judgment must be dismissed, as she is not aggrieved by that portion of the order ( seeCPLR 5511; Mortgage Elec. Registration Sys., Inc. v. McDuffie, 33 A.D.3d 893, 894, 825 N.Y.S.2d 224; Matter of Roman Catholic Diocese of Rockville Ctr. v. Board of Assessors of Inc. Vil. of Old Westbury, 303 A.D.2d 515, 515, 756 N.Y.S.2d 440;Drepaul v. Allstate Ins. Co., 299 A.D.2d 391, 392, 749 N.Y.S.2d 439;Bird v. Bird, 111 A.D.2d 204, 204–205, 489 N.Y.S.2d 238;Samuels v. Ames Realty Corp., 79 A.D.2d 651, 651, 433 N.Y.S.2d 829). We decline her request, in effect, to search the record and award her summary judgment dismissing the complaint and on her counterclaims.
The Supreme Court properly denied that branch of the movants' motion which was for summary judgment on the complaint. “A corporation is prohibited from asserting the defense of civil usury” ( Arbuzova v. Skalet, 92 A.D.3d 816, 816, 938 N.Y.S.2d 811;seeGeneral Obligations Law § 5–521; Schneider v. Phelps, 41 N.Y.2d 238, 242, 391 N.Y.S.2d 568, 359 N.E.2d 1361;Tower Funding v. Berry Realty, 302 A.D.2d 513, 514, 755 N.Y.S.2d 413). “An individual guarantor of a corporate obligation is also precluded from raising such a defense” ( Arbuzova v. Skalet, 92 A.D.3d at 816, 938 N.Y.S.2d 811;see Schneider v. Phelps, 41 N.Y.2d at 242, 391 N.Y.S.2d 568, 359 N.E.2d 1361;Tower Funding v. Berry Realty, 302 A.D.2d at 514, 755 N.Y.S.2d 413). Here, although the interest rate on the subject loan agreement exceeded 16% per annum ( seeGeneral Obligations Law § 5–501[1], [2]; Banking Law § 14–a[1]; Tower Funding v. Berry Realty, 302 A.D.2d at 514, 755 N.Y.S.2d 413), the movants failed to establish, prima facie, that the loan was made to the plaintiff Bernadette Pepin individually, and thus failed to establish their prima facie entitlement to judgment as a matter of law on the complaint. Moreover, for the same reason, the Supreme Court also properly denied that branch of the motion which was for summary judgment dismissing the counterclaims asserted by Jani, who allegedly extended the subject loan.
In light of our determination, we need not reach the movants' remaining contention.