Richardson v Brisard & Brisard, Inc.

[*1] Richardson v Brisard & Brisard, Inc. 2012 NY Slip Op 51250(U) Decided on July 9, 2012 Supreme Court, Kings County Demarest, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 9, 2012
Supreme Court, Kings County

Kelly Richardson,, Plaintiffs,

against

Brisard & Brisard, Inc., Phillip Brisard, and Kenneth Brisard,, Defendants.



10463/10



Attorney for Plaintiff:

Elena K. Makau

26 Court Street, Suite 603

Brooklyn, NY 11242

Attorney for Defendants:

Vivian M. Williams

Vivian M. Williams & Associates, P.C.

One Grand Central Pace, 46th Floor

60 East 42nd Street

New York, NY 10165

Carolyn E. Demarest, J.

In this action by plaintiff Kelly Richardson (plaintiff) against defendants Brisard & Brisard, Inc. (Brisard & Brisard), Phillip Brisard, and Kenneth Brisard (collectively, defendants) for an alleged breach of contract to repay loans advanced by him, defendants move for an order, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's complaint as against them, and for sanctions, costs, and legal fees pursuant to 22 NYCRR 130-1.1, or, in the alternative, compelling plaintiff to provide outstanding discovery and appear for depositions. Plaintiff cross-moves for summary judgment in his favor as to [*2]liability and an immediate assessment of damages.

BACKGROUND

On April 27, 2010, plaintiff filed this action, by service of a summons and notice of motion in lieu of complaint, as against Brisard & Brisard, which is a corporation; Phillip Brisard, who is Brisard & Brisard's chief executive officer and vice-president; and Kenneth Brisard, who is Brisard & Brisard's president. In plaintiff's motion for summary judgment in lieu of complaint, he alleged that he was a holder of an irrevocable agreement/promissory note for the payment of $15,000, $36,000, and $55,000, and a separate agreement/promissory note for the payment of $4,000, for a total sum of $110,000. On June 9, 2010, that motion was denied.

On June 16, 2010, plaintiff filed his verified complaint. Plaintiff, in the first cause of action of his verified complaint, alleges that on May 21, 2009, he entered into an irrevocable agreement with defendants, whereby he agreed to loan them the sum of $15,000, and that in consideration for making this loan, defendants agreed to pay this $15,000 sum back to him in no less than 60 days and no greater than 90 days from the date of receipt, which was May 21, 2009. Plaintiff also alleges that in further consideration for this initial loan in the amount of $15,000, defendants agreed that after repayment of this initial loan amount, they would pay him the sum of $3,000 for a period of one year for a total of $36,000, and that they additionally agreed to pay him the sum of $55,000 six months after the initial loan amount of $15,000 was repaid. Plaintiff asserts that on May 21, 2009, he made this $15,000 loan to defendants, but defendants have failed to make any payments required under the agreement, resulting in defendants now owing him the sum of $106,000 with interest.

Plaintiff, in the second cause of action of his verified complaint, alleges that he loaned defendants the sum of $4,000, and that 50% of this loan was to be repaid to him on March 31, 2009 and the remaining balance of $2,000 was to be repaid to him on April 10, 2009. Plaintiff claims that defendants have failed to make any of the payments required under the agreement between them, resulting in the sum of $4,000, plus interest, now due and owing to him.

Defendants interposed an answer, verified by Phillip Brisard, which contains general denials of plaintiff's allegations, and affirmative defenses, including a third affirmative defense which alleges that plaintiff has violated the usury law of New York.[FN1]

A preliminary conference order dated December 8, 2010 was entered into by the parties and so-ordered by the court. On May 17, 2011, plaintiff filed a motion, dated May 13, 2011, for an order compelling defendants to comply with the preliminary conference order or precluding defendants from offering evidence or testimony at trial based upon [*3]their non-compliance with that order. By an order dated June 29, 2011, the court granted plaintiff's motion to compel to the extent of: (1) requiring document demands and interrogatories to be served within 30 days of that order with responses to them to be served within 30 days of service of these document demands and interrogatories; (2) requiring that the depositions of plaintiff, Phillip Brisard, and Kenneth Brisard, be completed on September 21, 22, and 23, 2011, respectively; (3) scheduling a compliance conference on October 19, 2011; (4) extending the date for filing the note of issue to December 21, 2011; (5) setting an end date for disclosure of November 18, 2011; and (6) requiring dispositive motions to be returnable on or before February 1, 2012.

By letter dated August 22, 2011, plaintiff's counsel informed the court that defendants had not served any request for documents and had not responded to plaintiff's request for documents, which were served on defendants on July 29, 2011 by facsimile transmission and mail, and that plaintiff could not draft interrogatories without a response to his request for documents. The notice of discovery and inspection dated July 28, 2011 sought documents in defendants' possession evidencing the loan made by plaintiff, and copies of documents evidencing liquidation of any stocks and/or bonds purportedly on behalf of plaintiff by defendants. In addition, this notice sought copies of documents in defendants' possession evidencing each and every trade made by defendants on plaintiff's behalf, evidencing liquidation of stocks and bonds on behalf of plaintiff by defendants, and, specifically, evidencing trades made by defendants on behalf of plaintiff concerning Aluminum Corp. China, Companhia Vale, Latin American, Proshares, and Lululemon Athletica, including but not limited to any documents evidencing profit and/or loss, initial investment, and documents evidencing the transfer of funds for same.

On November 22, 2011, plaintiff filed a motion for an order compelling defendants to comply with the preliminary conference order, the court's June 29, 2011 order, and, particularly, his notice for discovery and inspection dated July 28, 2011, and/or to preclude defendants from offering any testimony or evidence at the trial of this action. By order dated January 4, 2012, the court, based upon defendants' failure to submit any written opposition as directed by the court, and defendants' admission, on December 21, 2011, that the documents sought by plaintiff had not been produced, granted plaintiff's motion by precluding defendants from offering evidence which had been demanded by plaintiff and was not produced.

On January 4, 2012, defendants filed this motion for summary judgment. On February 28, 2012, plaintiff filed this cross motion for summary judgment.

DISCUSSION

In support of their motion for summary judgment, defendants contend, among other things, that plaintiff's action must be dismissed as being barred by the defense of usury based upon the documentary evidence. Plaintiff, in support of his cross motion, contends that defendants are estopped from asserting usury as a defense, and that he is entitled to summary judgment because defendants are precluded with respect to the [*4]evidence they may offer at trial, and there are no triable issues of fact.

A transaction is usurious under civil law when it imposes an interest rate exceeding 16% per annum (see General Obligations Law § 5-501 [1]; Banking Law § 14-a [1]), and it is criminally usurious when it imposes an interest rate exceeding 25% per annum (see Penal Law §§ 190.40, 190.42). While the defense of civil usury is unavailable to a corporation (see General Obligations Law § 5-521 [1]), it may assert a defense of criminal usury (see General Obligations Law § 5-521 [3]; Penal Law § 190.40; Nikezic v Balaz, 184 AD2d 684, 685 [2d Dept 1992]; Transmedia Rest. Co. v 33 E. 61st St. Rest. Corp.,184 Misc 2d 706, 710 [Sup Ct, NY County 2000]).

Under New York law, usurious contracts are unenforceable (see General Obligations Law §§ 5-521, 5-511; Penal Law § 190.40; Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124, 127 [1992]; Seidel v 18 E. 17th St. Owners, 79 NY2d 735, 740-741 [1992]). "A usurious contract is void and relieves the plaintiff of the obligation to repay principal and interest thereon" (Abir v Malky, Inc., 59 AD3d 646, 649 [2d Dept 2009]; see also General Obligations Law § 5-511; Seidel, 79 NY2d at 740; Venables v Sagona, 85 AD3d 904, 905 [2d Dept 2011]; Stanley Weisz, P.C. Retirement Plan v NCHD Assoc., 237 AD2d 276, 277 [2d Dept 1997]; Fareri v Rain's Intl.,187 AD2d 481, 482 [2d Dept 1992]). "[T]here is a strong presumption against the finding of . . . criminal usury" (Koenig v Slazer Enters., 27 Misc 3d 1212[A], 2010 NY Slip Op 50688[U], *3 [Sup Ct, Rockland County 2010]). However, "[w]hile at trial, a [defendant] has the burden of establishing usury by clear and convincing evidence, in the context of a summary judgment motion, the burden is on a [plaintiff] to establish, prima facie, that the transaction was not usurious" (Abir, 59 AD3d at 649; see also Ujueta v Euro-Quest Corp., 29 AD3d 895, 895-896 [2d Dept 2006]).

Defendants assert that the allegations set forth in plaintiff's complaint show that the interest rate under the alleged loan agreement is criminally usurious since plaintiff seeks the repayment of the $15,000 loaned plus an additional $36,000 and another $55,000, for a total amount of $106,000 based upon a $15,000 loan made on May 21, 2009. Defendants note that such a repayment would result in an interest rate in excess of 25%, resulting in plaintiff being barred from recovery on his first cause of action under the usury law.

Defendants argue that with respect to plaintiff's second cause of action, he incorporates the allegations contained in his first cause of action, rendering his claim for recovery of the $4,000 loan part of the same criminally usurious transaction. Defendants further argue that a claim for a $4,000 loan, without being tacked onto the larger usurious transaction, could only be maintained in a small claims court and could not be separately brought in this court (see generally CCA 211).

Plaintiff, in opposition to defendants' motion and in support of his cross motion, initially argues that defendants' motion is deficient because they have failed to include an affidavit by a party with knowledge and a complete set of pleadings. However, [*5]defendants' answer is verified (see CPLR 105 [u]), and the pleadings have been otherwise submitted to the court. In addition, defendants' argument in support of their usury defense is based upon plaintiff's own verified complaint and affidavit.

In response to defendants' defense of criminal usury, plaintiff now asserts that the loans which are the subject of this action were made over several months beginning in October 2008 and shortly thereafter, and combined several separate loans. Plaintiff has submitted his sworn affidavit, which states that the irrevocable agreement dated May 21, 2009 was authored by defendants and was written to combine different loans into one document. Specifically, plaintiff claims that on October 29, 2008, he had a cashier's check in the amount of $25,000 issued to Brisard & Brisard, representing a loan to defendants in that sum. Plaintiff further claims that on October 31, 2008, he caused a wire transfer of $25,000 to be made into the account of Brisard & Brisard at Bank of America.

Plaintiff has submitted a copy of the $25,000 cashier's check, dated October 29, 2008, payable to Brisard & Brisard, listing Claudia Hernandez, as the remitter, drawn at JP Morgan Chase Bank, and a receipt for the $25,000 withdrawal of $25,000 from the joint account of plaintiff and Claudia Hernandez at JP Morgan Chase Bank dated October 29, 2008. Plaintiff has also submitted the wire transfer outgoing request by Ms. Hernandez from this same joint account of Ms. Hernandez and plaintiff, which directed a wire transfer to Brisard & Brisard in the amount of $25,000 on October 31, 2008, and a receipt from JP Morgan Chase for this $25,000 withdrawal dated October 30, 2008.

Plaintiff also asserts that on or about May 2009, he loaned defendants $15,000 on an emergency basis to cover costs associated with the rental of their office space, and that it was at this time that defendants authored the agreement which covered all of the loan amounts owed to him. Plaintiff has submitted a copy of a check dated May 22, 2009 payable to Brisard & Brisard in the amount of $7,500. Plaintiff claims that the fourth paragraph pertaining to the $55,000 payment was intended to cover the loans made on October 29 and October 30, 2008 and an additional loan of $5,000 made in cash.

Plaintiff asserts that as an incentive for making the $15,000 loan to defendants, it was proposed by defendants that two months after repaying the initial $15,000 loan, they would begin paying him $3,000 per month for a period of one year. Plaintiff further asserts that defendants attempted to repay part of the loan for $15,000 by issuing a check by Brisard & Brisard payable to Claudia Hernandez, dated August 25, 2009, in the amount of $14,000, which was returned marked "insufficient funds."

Phillip Brisard, in response to plaintiff's assertion that there were earlier loans, has submitted his affidavit, which states that at no time did defendants agree to combine several loans into a single loan agreement with plaintiff. He notes that the agreement fails to make any mention of these alleged earlier loans, and that plaintiff's complaint only asserts that the loan at issue was for $15,000, with no mention of any earlier loans on October 29 and 30, 2008 for $25,000 each or an additional loan in cash for $5,000. [*6]Plaintiff has never sought to amend his complaint to add these allegations of other loans. Phillip Brisard also points out that the withdrawals and checks were made by Claudia Hernandez, rather than plaintiff. Ms. Hernandez is a not a party to this action, and, while she had a joint account with plaintiff, from which the funds were drawn, plaintiff does not explain why Ms. Hernandez, rather than plaintiff, made these withdrawals and payments, or her relationship with defendants as pertains to these transactions.It is undisputed that the agreement, entitled "Irrevocable Agreement," was drafted by defendants, and it is set forth on Brisard & Brisard's letterhead. The agreement provided that plaintiff "acknowledges that this form constitutes the complete terms of the agreement and that by signing this form he/she is entering into a binding contract with Brisard & Brisard . . . in consideration for a loan of $15,000." The agreement further provided that Brisard & Brisard "promises to pay back [plaintiff] the total amount ($15,000) invested in no less than 60 days and no greater than 90 days from the date the $15,000 is received." In addition, the agreement set forth that "[a]fter the $15,000 . . . is paid back, [plaintiff] will grant Brisard & Brisard . . . [a] two (2) months grace period to start making a $3,000 . . . monthly payment for one (1) year which will equate to a total of $36,000," and that "[s]ix month[s] after the $15,000 . . . is returned [to plaintiff, plaintiff] will receive an additional $55,000." There is also additional language in the agreement that "[f]or an extra two (2) years, Brisard & Brisard . . . will pay [plaintiff] $1,000 . . . on every $7,000 . . . [it n]ets."

Under "terms and conditions," the agreement provided that the parties would "not in any manner discuss any business regarding this agreement to anyone other than Phillip Brisard and Ken Brisard," and if plaintiff violated this agreement and discussed the matter with anyone else, plaintiff would be penalized in the amount of 50% of the funds due under this contract. The agreement further provided, under "terms and conditions," that the parties would renegotiate this contract, and that if they were "unwilling to come to a fair agreement of the existing contract set forth the contract will be reactive [sic] for one year until the new agreement [was] met." The agreement stated that this contract shall be governed by the laws of the State of New York, and it was executed on May 21, 2009 by plaintiff, and Kenneth Brisard, as president, and Phillip Brisard, as vice-president, on behalf of Brisard & Brisard.

With respect to plaintiff's allegation, in his second cause of action, that he also loaned an additional $4,000 to defendants, plaintiff asserts that this loan was made pursuant to an undated agreement. This undated agreement, set forth on Brisard & Brisard's letterhead, provided that Phillip Brisard had requested $3,500 plus $500, totaling $4,000 as an additional loan, and that 50% of it will be repaid on March 31, 2009 in the amount of $2,000, and the remaining balance will be repaid on April 10, 2009. It further provided that a business plan will follow within the week, and it was executed by Phillip Brisard.

Plaintiff claims that the doctrine of estoppel in pais is applicable in this action, [*7]contending that he and defendants were in a special relationship of trust in that they were his investment brokers and were hired to conduct investments for him. He asserts that as such, defendants, over time, earned his trust, and that they became friends with him outside of their duties as investment counselors.

According to plaintiff, defendants approached him regarding advancing the loans to them for various purposes, including office expenses, and they were the ones who proposed the loans, proposed the interest rates, and drafted the loan documents. Plaintiff claims that defendants represented to him that the transaction was legal, and intended to and did, in fact, influence him to act to his detriment. Plaintiff argues that defendants should, therefore, be estopped from asserting criminal usury as a defense as the entire transaction was based upon defendants' intentional acts.

In Seidel (79 NY2d at 743), the Court of Appeals held that "a borrower may be estopped from interposing a usury defense when, through a special relationship with the lender, the borrower induces reliance on the legality of the transaction" (see also In re Venture Mortgage Fund, L.P., 282 F3d 185, 188 [2d Cir 2002]; Venables, 85 AD3d at 905; Abramovitz v Kew Realties Equities,180 AD2d 568, 568 [1st Dept 1992], lv denied 80 NY2d 753 [1992]; Angelo v Brenner, 90 AD2d 131, 133 [3d Dept 1982]; Hammond v Marrano, 88 AD2d 758, 759-760 [4th Dept 1982]; Schaaf v Borsher, 82 AD2d 880, 880 [2d Dept 1981]). The Court of Appeals, in so holding, reasoned that "[o]therwise, a borrower could void the transaction, keep the principal, and achieve a total windfall, at the expense of an innocent person, through his [or her] own subterfuge and inequitable deception'" (Seidel, 79 NY2d at 743, quoting Angelo, 90 AD2d at 133).

"Special relationships that may preclude assertion of the usury defense include attorney-client, fiduciary or trustee, or a longstanding friendship or its equivalent" (Carlone v Lion & the Bull Films, Inc., 2012 WL 1862729, *8 [SD NY Apr 30, 2012]; see also Hufnagel v George, 135 F Supp 2d 406, 408 [SD NY 2001]; Venture Mortgage Fund, 245 BR 460, 475 [Bkrtcy SD NY 2000], affd 282 F3d 185 [2d Cir 2002]; Abramovitz, 180 AD2d at 568), which results in a borrower inducing the lender to make the loan at a usurious rate (see Seidel, 79 NY2d at 741; Hammond, 88 AD2d at 759-760; Angelo, 90 AD2d at 133). " An indispensable requisite of an estoppel in pais, is that the conduct or representation was intended to, and did, in fact, influence the other party to [his or her] injury'" (Seidel, 79 NY2d at 743, quoting Payne v Burnham, 62 NY 69, 73 [1875]).

Where there is evidence that the defendants set a rate that they knew to be usurious for the purpose of avoiding repayment of the loan, an issue of fact is raised as to whether the defendants may be estopped from raising usury as a defense to the plaintiff's claims (see O'Donovan v Galinski, 62 AD3d 769, 770 [2d Dept 2009]; DeSantis v General Advisory & Funding Corp., 21 AD3d 1051, 1051 [2d Dept 2005]; Russo v Carey, 271 AD2d 889, 890 [3d Dept 2000]). Although a party may be "estopped from claiming usury, the illegal transaction is not entirely purged of its taint" (Seidel, 79 NY2d at 742; [*8]see also Keezing v Rodriguez,196 Misc 2d 408, 411 [Sup Ct, Kings County 2003]). "Balancing the competing interests of law and equity, 'the innocent [party] is permitted to recover only the amount advanced with interest, rather than to enforce the [loan] for its face amount'" (Seidel, 79 NY2d at 742, quoting Hammelburger v Foursome Inn Corp., 54 NY2d 580, 588 [1981]). Thus, it has been held that where there is, in fact, a usurious loan which would ordinarily be unlawful, void and unenforceable, if the "transaction was the brainchild of the defendant, equity dictates that the plaintiff is entitled to recovery of the outstanding balance of the amount advanced, with legal interest" (Keezing,196 Misc 2d at 411).

Here, although the interest effectively charged on the face of the agreement exceeds the criminal usury rate (see Penal Law § 190.40) and would be usurious without regard to the lender's intent (see Freitas v Geddes Sav. & Loan Assn., 63 NY2d 254, 262 [1984]; Fareri, 187 AD2d at 482), there is a triable issue of fact as to whether defendants should be estopped from raising usury as a defense (see Seidel, 79 NY2d at 743; DeSantis, 21 AD3d at 1051; Russo, 271 AD2d at 890; Greenfield v Skydell, 186 AD2d 391, 391-392 [1st Dept 1992]; Angelo, 90 AD2d at 133; Hammond, 88 AD2d at 760). Consequently, summary judgment dismissing plaintiff's complaint based upon the defense of criminal usury must be denied.

In addition, it is noted, in passing, that "[u]sury laws apply only to loans or forbearances, not investments" (Seidel, 79 NY2d at 744; see also General Obligations Law § 5-501 [1], [2]). "If the transaction is not a loan, there can be no usury, however unconscionable the contract may be'" (id., quoting Orvis v Curtiss, 157 NY 657, 661 [1899]). While not asserted by the parties, Brisard & Brisard's status as the investment broker for plaintiff, the language of the agreement that Brisard & Brisard will pay plaintiff $1,000 for every $7,000 that it nets, and plaintiff's request for documents concerning trades by Brisard & Brisard, raise issues of fact regarding whether any of the monies tendered by plaintiff were for investment purposes.

Defendants additionally contend that this action is barred by the Statute of Frauds because plaintiff did not attach of a copy of the loan agreement in his filing with the court. This contention is devoid of merit since plaintiff attached a copy of the loan agreement in his initial motion for summary judgment in lieu of complaint, which was filed on April 27, 2010 and served upon defendants on April 28, 2010. In addition, this affirmative defense was waived by defendants since it was not pleaded in their answer (see CPLR 3211 [e]).

Defendants also argue that plaintiff has failed to attach proof, such as cancelled checks, receipts, or bank statements, that he tendered funds to them and that plaintiff had failed to respond to discovery requests requesting such proof. Defendants assert that while plaintiff asserts that no document requests were made by them, they, in request numbers 16 through 19 of their demand for a bill of particulars, demanded that plaintiff provide them with a copy of each canceled check evidencing any funds provided by him [*9]to defendants as part of any loan agreement, a copy of any written agreement between them and any documents supporting the claims made by him in the complaint, any copies of all correspondence between them pertaining to the allegations, claims, and any transaction alleged in the complaint, and copies of his tax returns for the years 2008 through 2010. Defendants assert that while plaintiff, in his bill of particulars, stated that copies of all checks and other indicia of the loans would be supplied when available, he never supplied them. Defendants argue that plaintiff should now be precluded from submitting any proof since the discovery period has ended on November 18, 2011 pursuant to the court's June 29, 2011 order.

Defendants further argue that sanctions should be imposed against plaintiff for engaging in frivolous conduct, pursuant to 22 NYCRR 130-1.1, because he failed to attach to his complaint or include in any filing with the court the basic proof from which it could be reasonably established that he tendered funds to them, or to provide such proof in response to their discovery requests, which were included in their demand for a bill of particulars.

Defendants' arguments must be rejected. As previously noted, plaintiff annexed a copy of the agreement in his initial filing with the court for summary judgment in lieu of complaint. In addition, defendants' request for discovery and inspection, seeking evidentiary material, in their bill of particulars was improper (see Fremont Inv. & Loan v Gentile, 94 AD3d 1046, 1046 [2d Dept 2012]; 176-178 Ashburton Ave. Corp. v New York Prop. Ins. Underwriting Assn.,125 AD2d 653, 653 [2d Dept 1986]).

Defendants, in reply, complain that the documents submitted by plaintiff were not produced during discovery. However, defendants never served a demand for the production of documents pursuant to CPLR 3120. Defendants also argue that plaintiff filed his cross motion after the deadline for filing dispositive motions set forth in the court's order. A court may entertain an untimely cross motion for summary judgment if the court is deciding a timely motion for summary judgment made on nearly identical grounds (see Grande v Peteroy, 39 AD3d 590, 591—592 [2d Dept 2007]). Here, plaintiff may properly raise his opposition to defendants' motion in his cross motion.

Insofar as plaintiff seeks summary judgment in his favor, he is not entitled to such relief since an issue of fact is raised as to whether the loan is criminally usurious. In any event, summary judgment is a drastic remedy that deprives a litigant of his or her day in court and thus summary judgment should only be granted when there is no doubt as to the absence of triable issues of material fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Kolivas v Kirchoff, 14 AD3d 493, 493 [2d Dept 2005]). The court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" (Lopez v Beltre, 59 AD3d 683, 685 [2d Dept 2009]; see also Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Moreover, "[a]s a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of [*10]its claim or defense'" (Mennerich v Esposito, 4 AD3d 399, 400 [2d Dept 2004], quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [4th Dept 1992]). Furthermore, "[a] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010], quoting Scott v Long Is. Power Auth., 294 AD2d 348, 348 [2d Dept 2002]; see also Baker v D.J. Stapleton, Inc., 43 AD3d 839, 839 [2d Dept 2007]).

Here, plaintiff has failed to demonstrate as a matter of law that he loaned the monies claimed by him to defendants. While plaintiff has submitted a cashier's check and wire transfer, the only check submitted by plaintiff which is contemporaneous with the May 21, 2009 is one for $7,500, and plaintiff has not submitted any other documents evidencing the $15,000 loan. Plaintiff has also not submitted documentary evidence of the $4,000 loan. Thus, these issues of fact (even without considering defendants' usury defense) would preclude summary judgment in plaintiff's favor.

While defendants, in their notice of cross motion, alternatively seek an order compelling plaintiff to provide outstanding discovery and appear for deposition, they do not assert that there are any outstanding demands for discovery by them, other than their improper demands in their bill of particulars. Defendants have also shown no basis for sanctions, pursuant to 22 NYCRR 130-1.1, as against plaintiff.

CONCLUSION

Accordingly, defendants' motion is denied in its entirety, and plaintiff's cross motion is also denied.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Defendants' answer also contains a counterclaim against plaintiff for abuse of process, and plaintiff filed a reply to this counterclaim, dated December 16, 2010, which denies the allegations set forth in the counterclaim.