Opinion
December 30, 1991
Appeal from the Supreme Court, Suffolk County (McCarthy, J.).
Ordered that the appeal by Steven Horowitz is dismissed as abandoned; and it is further,
Ordered that the order is reversed insofar as appealed from by the appellants Hyman Horowitz, Joyce Elish Pension Trust, and Joyce Elish individually, on the law, the motion is denied, the cross motion is granted, and the complaint insofar as it is asserted against the appellants is dismissed; and it is further,
Ordered that the appellants Hyman Horowitz, Joyce Elish Pension Trust, and Joyce Elish individually, are awarded one bill of costs, payable by the plaintiffs.
There are no triable issues of fact in this case. Although the terms of the parties' equity participation agreement provided the defendants with more protection against the potential fluctuations of the market than it provided the plaintiffs (see, Orvis v Curtiss, 157 N.Y. 657, 662; Schaaf v Borsher, 82 A.D.2d 880; Leibovici v Rawicki, 57 Misc.2d 141, affd 64 Misc.2d 858), there is no evidence that the transaction at issue was other than a joint venture to share in the appreciation of real property, as opposed to a "loan or forbearance" within the meaning of the usury laws (see, Schaaf v Borsher, supra; Blair v Scimone, 26 A.D.2d 751; 72 N.Y. Jur 2d, Interest Usury, § 64). A usurious agreement will not be presumed from facts equally consistent with a lawful purpose (see, Grannis v Stevens, 216 N.Y. 583). Thompson, J.P., Bracken, Harwood and Copertino, JJ., concur.