Opinion
December 16, 1980
Appeal from order of Supreme Court, New York County, entered July 30, 1979, unanimously dismissed as academic, without costs, it having been subsumed into the order on renewal, entered October 23, 1979. The latter order unanimously modified, on the law, to deny plaintiffs-respondents' motion for summary judgment pursuant to CPLR 3213, and to direct service, within 20 days of service of the order entered hereon, of a formal complaint, with answer to follow in course, and otherwise to affirm, with costs to defendant-appellant. Though appearing at first blush to be a classic CPLR 3213 case based upon a promissory note, we find unresolved issues of fact which require further examination. Two examples will suffice. The relationship of defendants, one corporate, one individual, requires explanation beyond their simple description in the instrument as "co-makers"; the different usury rules applicable to both sorts of borrower, corporate and individual, taken in context with an allegation that the corporation was no more than an accommodation maker, seem to call for further examination before this case may be deemed ripe for summary judgment. Formal pleadings will be of great assistance in charting the further course of this litigation.
Concur — Murphy, P.J., Ross, Markewich, Lupiano and Lynch, JJ.