Opinion
July 5, 1994
Appeal from the Supreme Court, Kings County (Golden, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the plaintiffs are awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
Contrary to the defendants' contention, the Supreme Court properly granted the plaintiffs' motion for summary judgment. The plaintiffs sustained their initial burden of demonstrating their entitlement to judgment as a matter of law by submitting proof of the existence of the promissory note and the defendants' default in payment (see, European Am. Bank v. Syosset Autorama, 204 A.D.2d 266; North Fork Bank Trust Co. v. Bernstein Gershman, 201 A.D.2d 472). Moreover, the defendants' conclusory and unsubstantiated allegations of usury were insufficient to raise a triable issue of fact regarding the validity of the loan agreement (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320; New York Natl. Bank v. Harris, 182 A.D.2d 680). In this regard, we note that although the interest rate charged by the plaintiffs was in excess of 16%, which is the maximum rate of interest which can be charged to an individual borrower (see, General Obligations Law § 5-501; Banking Law § 14-a; First Natl. Bank v. Mountain Food Enters., 159 A.D.2d 900), the 16% ceiling on interest rates is inapplicable "to any loan or forbearance in the amount of two hundred and fifty thousand dollars or more, other than a loan or forbearance secured primarily by an interest in real property improved by a one or two family residence" (General Obligations Law § 5-501 [a]). In any event, the defendants are barred from raising usury as a defense to this action because they could have asserted the defense in a prior foreclosure action, in which they defaulted (see, Bank of N.Y. v. Route 312 Dev. Corp., 185 A.D.2d 582; Tantillo v. Giglio, 156 A.D.2d 664, 665; see also, Wainco Funding v. Logiudice, 199 A.D.2d 950; Valdez v. Garcia, 151 A.D.2d 471; Farmers' Prod. Credit Assn. v. Feinen Bros., 144 A.D.2d 955; Gray v. Bankers Trust Co., 82 A.D.2d 168, 170-171). Thompson, J.P., O'Brien, Ritter and Krausman, JJ., concur.