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JOSEPH J. AMATO v. OSARWALD CONSTRUCTION CORP. (04/21/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


April 21, 1969

JOSEPH J. AMATO, AS TRUSTEE, RESPONDENT,
v.
OSARWALD CONSTRUCTION CORP., APPELLANT, ET AL., DEFENDANTS

Appeal by defendant Osarwald Construction Corp., as limited by its brief, from so much of an order of the Supreme Court, Orange County, dated August 1, 1968 and made on reargument and renewal of plaintiff's motion for summary judgment, as adhered to a decision granting plaintiff's said motion.

Christ, Acting P. J., Brennan, Rabin, Munder and Martuscello, JJ., concur.

The action is to foreclose a mortgage. In its answer appellant interposed the affirmative defense of the Statute of Limitations, alleging that the cause of action accrued more than six years prior to the date on which the action was commenced. On the renewal motion, appellant also asserted that the defense of usury was available to it. In our opinion plaintiff's motion for summary judgment was improperly granted. While it is clear that the defense of usury is unavailable to appellant, as the loan was made to a corporation and none of the exceptions of the General Obligations Law applies (see General Obligations Law, ยง 5-521), in our view there are factual issues present at least as to whether the action is time barred. The factual issues arise out of the contrary positions taken in the papers before us as to whether an interest payment was made on the account of the subject mortgage or on a separate loan agreement. These matters ought to be explored at a plenary trial.

Disposition

Order reversed insofar as appealed from, on the law, with $10 costs and disbursements, and plaintiff's said motion denied.

19690421

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