Opinion
April 2, 1962
In an action to foreclose a mortgage on real property in which the defense of usury has been interposed, the defendants Schwarz appeal: (a) from an order of the County Court, Nassau County, dated June 20, 1961, which granted plaintiff's motion for summary judgment striking out said defendants' answer, directed a reference to compute the amount due and directed the subsequent entry of judgment of foreclosure and sale; and (b) from so much of an order of said court, dated the same day, as, upon reargument, adhered to the original decision. Order made on reargument, insofar as appealed from, reversed, with $10 costs and disbursements, and plaintiff's motion for summary judgment denied, with $10 costs. Appeal from the original order dismissed, without costs. This order was superseded by the later order made on reargument. In our opinion, the record discloses triable issues of fact as to whether the transactions were, in fact, loans to the said defendants Schwarz in violation of section 370 et seq. of the General Business Law, rather than loans to Cassel Custards, Inc., a corporation ( Shapiro v. Weissman, 7 A.D.2d 752). Hence, it was improper to grant summary judgment; the issues should be determined after trial. Ughetta, Acting P.J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.