Franklin Nat. Bank of Long Island v. DeGiacomo
| Decision Date | 09 March 1964 |
| Citation | 20 A.D.2d 797,248 N.Y.S.2d 586 |
| Parties | The FRANKLIN NATIONAL BANK OF LONG ISLAND, Respondent, v. Louis DeGIACOMO, Appellant; Robert J. Lawler et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Bleakley, Platt, Schmidt, Hart & Fritz, New York City, for appellant; Herman Strizver, New York City, of counsel.
Sullivan & Thorp, Rockville Centre, for respondent; John S. Thorp, Jr., Rockville Centre, of counsel.
Before KLEINFELD, Acting P. J., and CHRIST, BRENNAN, HILL and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In an action to foreclose a mortgage, the defendant DeGiacomo appeals from so much of an order of the Supreme Court, Nassau County entered February 19, 1963, as granted plaintiff's motion for summary judgment against him, struck out his answer and directed judgment against him for the relief demanded in the complaint.
Order modified so as to provide: (1) that plaintiff's motion is granted to the extent of directing partial summary judgment against defendant Louis DeGiacomo for so much of its claim as does not represent unpaid interest; (2) that as against said defendant the plaintiff's claim for the unpaid interest is severed from the rest of its claim against him; (3) that with respect to said claim for unpaid interest against said defendant, plaintiff's motion for summary judgment is denied; and (4) that the entry of judgment in the action shall be held in abeyance pending the determination of said claim for unpaid interest against said defendant. As so modified, order, insofar as appealed from, affirmed without costs.
In our opinion, triable issues are presented with respect to the defense of usury. Although a usurious loan by a bank is not void, the entire interest is forfeited (12 U.S.C.A. § 86, Banking Law, §§ 108, 235-b) and the defense of usury is available as against a bank's claim for unpaid interest (Empire Trust Co. v. Coleman, 222 N.Y. 577, 118 N.E. 1057; East New York Savings Bank v. Lang, 261 App.Div. 981, 26 N.Y.S.2d 21).
The plaintiff claims that there is no proof that it had knowledge of the alleged bonus exacted by its Assistant Vice-President, which forms the basis for the said defendant's claim of usury. However, defendant is not in a position to know whether the plaintiff through its agents had knowledge of the bonus. Hence, the rule applies that summary judgment should not be granted if the facts upon which the motion is predicated are exclusively within the knowledge of the moving party or clearly not within the knowledge of the opponent (De France...
To continue reading
Request your trial
-
Gilbert v. Meyer
... ... was also said in Crocker-Citizens National Bank v. L.N. Magazine Distributors, Inc., 26 A.D.2d ... within the knowledge of the opponent (Franklin ... Nat. Bank of Long Island v. De Giacomo, 20 ... ...
-
Metro Realty Services, LLC v. Old Country Realty Corp., 2009 NY Slip Op 30462(U) (N.Y. Sup. Ct. 2/23/2009)
...party cannot know, as where it turns on the scope of the movant's knowledge of his own agent's act. (See Franklin Nat. Bank v. PeGiacomo. 20 A.D.2d 797, 248 N.Y.S.2d 586, 2nd Dept., 1964). But speculation and unsubstantiated allegations are insufficient to defeat such a motion. (See Judith ......
-
Hennessy v. City of N.Y., 307847/09.
...when the facts necessary to oppose the motion are within the exclusive knowledge of the moving party (Franklin National Bank of Long Island v. De Giacomo, 20 A.D.2d 797, 297 [2d Dept 1964] ; De France v. Oestrike, 8 A.D.2d 735, 735–736 [2d Dept 1959] ; Blue Bird Coach Lines, Inc. v. 107 Del......
-
First Nat. Bank of Amenia v. Mountain Food Enterprises, Inc.
...claim (see, CPLR 2201; see also, Umansky v. Seaboard Indus., 45 A.D.2d 1051, 1052, 358 N.Y.S.2d 22; Franklin Natl. Bank of L.I. v. De Giacomo, 20 A.D.2d 797, 798, 248 N.Y.S.2d 586; Casten v. Tannenbaum, 42 Misc.2d 118, 119, 246 N.Y.S.2d Lastly, we note that Supreme Court denied plaintiff's ......