Adler v. Marzario

• Decision Date: 15 December 2021
• Docket Number: Index No. 613648/18,2019–03615
• Citation: 200 A.D.3d 829,155 N.Y.S.3d 337 (Mem)
• Parties: Michael ADLER, appellant, v. Joanne MARZARIO, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 829
155 N.Y.S.3d 337 (Mem)

Michael ADLER, appellant,
v.
Joanne MARZARIO, et al., respondents, et al., defendants.

2019–03615
Index No. 613648/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 7, 2021
December 15, 2021

Richard A. Rosensweig, Esq., P.C., Staten Island, NY, for appellant.

Charles A. Termini, Oceanside, NY, for respondents.

REINALDO E. RIVERA, J.P., ANGELA G. IANNACCI, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (Julianne T. Capetola, J.), entered April 4, 2019. The order, insofar as appealed from, granted the cross motion of the defendants Joanne Marzario and Paul Marzario, in effect, for summary judgment dismissing the complaint insofar as asserted against them and deeming the mortgage void on the ground that the loan was usurious.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against Joanne Marzario and Paul Marzario (hereinafter together the defendants), among others, to foreclose a mortgage on real property owned by Joanne Marzario. The mortgage was given as security for a note signed by the defendants, promising to repay the principal sum of $75,000, with interest at a rate of 20% per annum. In their answer to the complaint, the defendants asserted the defense of usury.

In response to the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, the defendants cross-moved, in effect, for summary judgment dismissing the complaint insofar as asserted against them and deeming the mortgage void on the ground that the loan was usurious. In an order entered April 4, 2019, the Supreme Court, among other things, granted the cross motion, and the plaintiff appeals.

General Obligations Law § 5–501(2) prohibits any person from charging, taking, or receiving any money as interest on a loan at a rate exceeding the maximum permissible interest rate (see Roopchand v. Mohammed, 154 A.D.3d 986, 988, 62 N.Y.S.3d 514...