Opinion
2012-02-21
Lilia ARBUZOVA, respondent, v. Yury SKALET, et al., appellants.
Sanford Solny, Brooklyn, N.Y., for appellants. Steven B. Sarshik, New York, N.Y., for respondent.
Sanford Solny, Brooklyn, N.Y., for appellants. Steven B. Sarshik, New York, N.Y., for respondent.
In an action to recover on a promissory note, the defendants appeal from a judgment of the Supreme Court, Kings County (Schmidt, J.), entered March 28, 2011, which, upon an order of the same court dated February 17, 2011, granting the plaintiff's motion for summary judgment on the complaint and denying their cross motion for summary judgment dismissing the complaint, is in favor of the plaintiff and against them in the principal sum of $125,000.
ORDERED that the judgment is affirmed, with costs.
A corporation is prohibited from asserting the defense of civil usury ( see General 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 ( 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 in the subject promissory note exceeded 16% per annum ( see General 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 plaintiff established, prima facie, that the loan was made to the corporate defendant, Bais Seller Realty, with the defendant Yury Skalet as personal guarantor of the loan ( see Tower Funding v. Berry Realty, 302 A.D.2d at 514, 755 N.Y.S.2d 413). In opposition to this prima facie showing, the defendants failed to raise a triable issue of fact ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on her complaint and denied the defendants' cross motion for summary judgment dismissing the complaint.