HORT v. DEVINE

The court properly denied defendant's cross motion for summary judgment dismissing the complaint on the ground of usury. At the outset, we reject plaintiff's argument that the usury statute (Penal Law § 190.40) does not apply to this case. We further find that plaintiff's estoppel argument involves questions of fact to be raised at trial, and that defendant is not precluded, as a matter of law, from raising the defense of usury (see e.g. Pemper v. Reifer, 264 A.D.2d 625).

"[W]here usury does not appear on the face of the note, usury is a question of fact" (Freitas v. Geddes Sav. Loan Assn., 63 N.Y.2d 254, 262). Here, usury does not appear on the face of the note, and defendant's usury argument depends on evidence that is extrinsic to the note. Thus, summary judgment was properly denied (see Greenfield v. Skydell, 186 A.D.2d 391). Moreover, there are factual issues concerning usurious intent that also preclude summary judgment. Where the note, on its face, is not illegal, "[u]surious intent, an essential element of usury, . . . is a question of fact," and "a bona fide mistake of fact vitiates usurious intent" (Freitas, 63 N.Y.2d at 262).

We have considered and rejected defendant's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.