| Pepin v Jani |
| 2012 NY Slip Op 08293 [101 AD3d 694] |
| December 5, 2012 |
| Appellate Division, Second Department |
| Bernadette Pepin et al., Respondents-Appellants, v VinaJani, Appellant-Respondent. BJML, Inc., Additional CounterclaimDefendant-Respondent-Appellant. |
—[*1] Schwartz & Ponterio, PLLC, New York, N.Y. (Matthew F. Schwartz of counsel), forplaintiffs/counterclaim defendants-respondents-appellants and additional counterclaim defendantrespondent-appellant.
In an action, inter alia, for a judgment declaring, in effect, that a certain loan agreement isusurious, void, and unenforceable, the defendant/counterclaim plaintiff, Vina Jani, appeals fromso much of an order of the Supreme Court, Kings County (Solomon, J.), dated March 24, 2010,as denied the motion of the plaintiffs/counterclaim defendants for summary judgment on thecomplaint and dismissing the counterclaims insofar as asserted against them without prejudice torenew the motion following the completion of discovery, and the plaintiffs/counterclaimdefendants and the additional/counterclaim defendant cross-appeal, as limited by their brief, fromso much of the same order as denied the motion of the plaintiffs/counterclaim defendants forsummary judgment on the complaint and dismissing the counterclaims asserted by Jani againstthe plaintiffs/counterclaim defendants.
Ordered that the appeal by the defendant/counterclaim plaintiff is dismissed, without costs ordisbursements, as the defendant/counterclaim plaintiff is not aggrieved by the portion of the orderappealed from; and it is further,
Ordered that the cross appeal by the additional counterclaim defendant is dismissed, withoutcosts or disbursements, as the additional counterclaim defendant is not aggrieved by the orderappealed from; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from by theplaintiffs/counterclaim defendants, without costs or disbursements.
The appeal by the defendant/counterclaim plaintiff, Vina Jani, from so much of the order as"denied without prejudice" the motion of the plaintiffs/counterclaim defendants (hereinafter[*2]collectively the movants) for summary judgment must bedismissed, as she is not aggrieved by that portion of the order (see CPLR 5511; Mortgage Elec. Registration Sys., Inc. vMcDuffie, 33 AD3d 893, 894 [2006]; Matter of Roman Catholic Diocese ofRockville Ctr. v Board of Assessors of Inc. Vil. of Old Westbury, 303 AD2d 515, 515[2003]; Drepaul v Allstate Ins. Co., 299 AD2d 391, 392 [2002]; Bird v Bird, 111AD2d 204, 204-205 [1985]; Samuels v Ames Realty Corp., 79 AD2d 651, 651 [1980]).We decline her request, in effect, to search the record and award her summary judgmentdismissing the complaint and on her counterclaims.
The Supreme Court properly denied that branch of the movants' motion which was forsummary judgment on the complaint. "A corporation is prohibited from asserting the defense ofcivil usury" (Arbuzova v Skalet, 92AD3d 816, 816 [2012]; see General Obligations Law § 5-521; Schneider vPhelps, 41 NY2d 238, 242 [1977]; Tower Funding v Berry Realty, 302 AD2d 513,514 [2003]). "An individual guarantor of a corporate obligation is also precluded from raisingsuch a defense" (Arbuzova v Skalet, 92 AD3d at 816; see Schneider v Phelps, 41NY2d at 242; Tower Funding v Berry Realty, 302 AD2d at 514). Here, although theinterest rate on the subject loan agreement exceeded 16% per annum (see GeneralObligations Law § 5-501 [1], [2]; Banking Law § 14-a [1]; Tower Funding vBerry Realty, 302 AD2d at 514), the movants failed to establish, prima facie, that the loanwas made to the plaintiff Bernadette Pepin individually, and thus failed to establish their primafacie entitlement to judgment as a matter of law on the complaint. Moreover, for the same reason,the Supreme Court also properly denied that branch of the motion which was for summaryjudgment dismissing the counterclaims asserted by Jani, who allegedly extended the subject loan.
In light of our determination, we need not reach the movants' remaining contention. Dillon,J.P., Dickerson, Austin and Miller, JJ., concur.