Opinion
March 7, 1994
Appeal from the Supreme Court, Suffolk County (Lama, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which denied the plaintiff's motion in its entirety, and by substituting therefor a provision granting the plaintiff's motion to the extent of dismissing the defendant's second affirmative defense, second counterclaim, and third (repetitively denominated "first") affirmative defense, and otherwise denying the motion; as so modified, the order is affirmed, without costs or disbursements.
We agree with the Supreme Court that issues of fact exist with respect to whether the establishment of a "reserve fund" in connection with the mortgage loan issued in this case constituted, in substance, the fixing of a usurious interest rate (see generally, Hope v. Contemporary Funding Group, 128 A.D.2d 673; Vee Bee Serv. Co. v. Household Fin. Corp., 51 N.Y.S.2d 590, affd 269 App. Div. 772). The respondent is thus entitled to a trial on the issues raised in his first affirmative defense and first counterclaim. However, upon this record, there is no issue of fact concerning the applicability of the statutes and regulations upon which he based his second affirmative defense, second counterclaim and third (repetitively denominated "first") affirmative defense, and those statutes and regulations are inapplicable. We modify the order appealed from accordingly. Bracken, J.P., Sullivan, Miller and Lawrence, JJ., concur.