From Casetext: Smarter Legal Research

Schaaf v. Borsher

Appellate Division of the Supreme Court of New York, Second Department
Jun 22, 1981
82 A.D.2d 880 (N.Y. App. Div. 1981)

Opinion

June 22, 1981


In an action on a promissory note, commenced by service of a summons with notice of motion for summary judgment in lieu of complaint, the plaintiff appeals from an order of the Supreme Court, Nassau County (Altimari, J.), dated February 6, 1981, which denied his motion for summary judgment and granted the defendant's cross motion for security for costs. Order reversed, on the law, with $50 costs and disbursements, motion granted, cross motion denied as academic, and plaintiff is granted judgment against the defendant for the sum of $15,085.17, together with interest from July 1, 1980. The circumstances of this case present no triable issues of fact. There is no evidence that the transaction at issue was other than an investment from which the plaintiff was to have received a fixed share of the profits, as opposed to a "loan or forbearance" within the meaning of subdivision 1 of section 5-501 Gen. Oblig. of the General Obligations Law. A usurious agreement will not be presumed from facts equally consistent with a lawful purpose (Grannis v Stevens, 216 N.Y. 583). The defendant, an attorney, should be estopped from asserting the defense of usury where he has induced the plaintiff's reliance, arranged the terms of the investment, and actually drawn up the promissory note sued upon. Titone, J.P., Lazer, Weinstein and Thompson, JJ., concur.


Summaries of

Schaaf v. Borsher

Appellate Division of the Supreme Court of New York, Second Department
Jun 22, 1981
82 A.D.2d 880 (N.Y. App. Div. 1981)
Case details for

Schaaf v. Borsher

Case Details

Full title:DONALD SCHAAF, Appellant, v. HARRY N. BORSHER, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 22, 1981

Citations

82 A.D.2d 880 (N.Y. App. Div. 1981)

Citing Cases

Venables v. Sagona

Some 18 months after the Appellate Division's order was handed down, the plaintiff moved for, and was…

Vitale v. Flocco

In Seidel v. 18 East 17th Street Owners, Inc. (79 NY2d 735, 742 [1992]), the Court reasoned: "The Appellate…