Opinion
March 14, 1961
Judgment entered on the order granting plaintiff's motion for summary judgment, unanimously reversed, on the law, on the facts and in the exercise of discretion, and the motion is denied with leave to renew upon completion of all pretrial proceedings, without costs. On this rather incomplete and unsatisfactory record, a question of fact is presented with respect to the defense of usury alleged in the first complete defense. The defense and the affidavit of Fassoulis allege he, and not Sales Consultants, Inc., is the borrower. Further, an issue of fact is presented with respect to privity. The defense of usury is personal to the borrower and is not available to these defendants if they were strangers to the allegedly usurious loan transaction. ( Williams v. Tilt, 36 N.Y. 319, 325; Thorer Hollander v. Fuchs, 241 App. Div. 359; Crittenden v. Barkin, 212 App. Div. 232, affd. 242 N.Y. 508.) We do not at this time decide whether plaintiff is entitled to recover the principal of the promissory note or whether recovery is limited to the amount of the loan thereby secured.
Concur — Botein, P.J., Breitel, Rabin, McNally and Eager, JJ.