Opinion
July 12, 1977
Appeal from the Onondaga Supreme Court.
Present — Simons, J.P., Dillon, Hancock, Denman and Goldman, JJ.
Order unanimously affirmed, with costs. Memorandum: Defendant, owner and operator of Stereo Car Radio in Syracuse, appeals both a summary judgment granted on plaintiff's motion in the amount of $1,438.78 due for the cost of goods sold on an open account, and the denial of his cross motion for leave to amend his answer so as to raise the defense of usury and to include a counterclaim based thereon. Plaintiff supplies defendant's business with Quasar television sets and parts. Special Term denied plaintiff's motion with respect to service charges allegedly due in the amount of $155.59. Plaintiff's moving affidavit contained copies of the ledger sheets showing a debit balance in defendant's account of $1,594.37. Defendant's answer was a general denial. His answering affidavit neither provided documentary evidence disputing plaintiff's statement of the account, nor specifically denied the stated amount due. But for the alleged defense of usury, summary judgment would unquestionably have been proper. A general denial is insufficient (see Mallad Constr. Corp. v County Fed. Sav. Loan Assn., 32 N.Y.2d 285; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255; Indig v Finkelstein, 23 N.Y.2d 728; Beck v Greinert, 29 A.D.2d 712). Defendant claims on appeal that even if the debt is not usurious, it would constitute a revolving charge account in violation of New York's Retail Installment Sales Act (Personal Property Law, § 401 et seq.). He contends alternatively that the transactions sued on are a "loan or forbearance of * * * money, goods, or things in action" so as to be subject to the usury provisions of section 5-501 Gen. Oblig. of the General Obligations Law. The defendant's arguments lack merit. The Retail Installment Sales Act is inapplicable to a sale of goods by a wholesale distributor to a retailer for the purpose of resale. (See definition of "goods" contained in Personal Property Law, § 401, subd 1; and see Zenith Fin. Corp. v Jolly Gene Dist., 24 A.D.2d 507.) Further, this credit transaction was neither a "loan" nor a "forbearance" within the meaning of section 5-501 Gen. Oblig. of the General Obligations Law. The charges imposed upon past due accounts were not interest charges, but service charges "for the privilege of purchasing on credit" (Zachary v Macy Co., 31 N.Y.2d 443, 457, n 5). (See, also, Congress Fin. Corp. v Patti, 26 A.D.2d 924, wherein the court held that the "prohibitions against usury are inapplicable * * * to a sale of property on credit", citing Brooks v Avery, 4 N.Y.2d 225; Jackson v Westchester Auto Credit Corp., 293 N.Y. 840; Tierney Sons v Bajowski, 233 App. Div. 766, affd 258 N.Y. 563; Archer Motor Co. v Relin, 255 App. Div. 333; Thomas v Knickerbocker Operating Co., 202 Misc. 286.) Inasmuch as there was no merit to the asserted defenses, Special Term properly granted plaintiff's motion for summary judgment and denied defendant's cross motion to amend the answer.