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CLARA STEIN v. ASTRO PROPERTIES (11/25/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


November 25, 1968

CLARA STEIN, APPELLANT,
v.
ASTRO PROPERTIES, INC., ET AL., RESPONDENTS, ET AL., DEFENDANTS

In an action to foreclose a mortgage, plaintiff appeals from an order of the Supreme Court, Richmond County, dated February 20, 1968, which denied her motion for summary judgment.

Rabin, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.

No questions of fact were considered. In our opinion, there is no showing that the loan made to a corporation and guaranteed by defendant Rae individually was in fact made to Rae individually, though in form to the corporation, to hide the fact that appellant was exacting an illegal rate of interest. The loan was not an illegal, usurious loan and the defense of usury is not available in a foreclosure action brought against a defendant corporation (Leader v. Dinkler Mgt. Corp., 20 N.Y.2d 393; Jenkins v. Moyse, 254 N. Y. 319).

Disposition

Order reversed, on the law, without costs, and motion granted, with one bill of $10 costs and disbursements, payable jointly by respondents appearing separately.

19681125

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