Opinion
December 4, 1972
In an action on a promissory note, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, dated March 7, 1972, as (a) denied his motion for summary judgment upon papers in lieu of a complaint and (b) granted defendant summary judgment dismissing the action. Order modified by (1) striking from the second decretal paragraph thereof the word "granted" and substituting therefor the word "denied" and (2) striking so much of the fourth decretal paragraph thereof as directs entry of judgment against plaintiff As so modified, order affirmed insofar as appealed from, without costs. In our opinion, the following triable issues of fact are presented: (1) whether the loan made by plaintiff was in fact usurious, (2) whether the sale of capital stock of defendant's corporate subsidiary to plaintiff was a cloak for extra interest charged on the loan and (3) whether the loan made to defendant was "knowingly" made at a rate exceeding 25% per annum within the meaning of the applicable statutes (Penal Law, § 190.40; General Obligations Law, § 5-521, subd. 3; Balk v. Frank, 29 A.D.2d 685). Rabin, P.J., Hopkins, Martuscello, Latham and Christ, JJ., concur.