Zelik v Rubashkin

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Zelik v Rubashkin 2022 NY Slip Op 32954(U) August 29, 2022 Supreme Court, Kings County Docket Number: Index No. 501618/17 Judge: Lawrence Knipel Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 501618/2017 FILED: KINGS COUNTY CLERK 09/01/2022 03:43 PM NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/01/2022 At an IAS Tenn, Commercial Part 6 of the Supreme Court of the State of New York, held iti and for the County of Kings, at the Courthous.e, at 360 Adams Street, Brooklyn, New York, on the 29 th day of August, 2022. PRESENT: I-ION. LAWRENCE KNIPEL, Justice. -. ----· - . --. -----. ------------------- , .------- .. -----. X JOSEPHZELIK, Plaintiff, DECISION AND ORDER -against- Index No. 501618/17 YtTZCHOKDovmRVBASHKIN, et al., Mot. Seq; No. 9 Defendants. --------------------- ------. ------. ----------- . -----. -X The following e-filed papers read herein: NYSCEF Doc No.: Notice of Motion, Affinnations (Affidavits), and Exhibits Annexed -----------Affirmat i011 s (Affidavits) in Opposition a11d Exhibits Annexed. _ _ _ _ _ _ _ _ _ _ _ __ Reply Affirmations {Affidavits) and Exhibits Annexed _ _ 308-376 381-'390 391-,397 In this mortgage-foreclosure action, plaintiff Joseph Zelik {"plaintiff") moves (in Seq. No. 9) for an order; in effect, pursuant to CPLR222 l ( e) and the decision/order ofthe Court, dated February 26, 2018 (Vaugha1i, J.) (the "prior order'), renewing, post-Note of Issue, its earlier pre-discovery motion (in Seq. No. 1) for an order: (1) pursuant to CPLR 3212,. granting it sq1umaryj~dgment and dismissing the answer with affirmative defenses of .defendant Yttzchok Dovid Ruba~h~in ("defendant"); and (2) pµrsuant to RPAPL 1321, appointing a referee to hear and co111pute the arrrnunt due and owing by defendant on his two notes and mortgages -the first set of the notes and ntortgages Which [* 1] 1 of 4 FILED: KINGS COUNTY CLERK 09/01/2022 03:43 PM NYSCEF DOC. NO. 398 INDEX NO. 501618/2017 RECEIVED NYSCEF: 09/01/2022 is dated April 4, 2013 in the principal amount of $499,990 (the "first loan"), and the second set of the notes and mortgages which is dated July 30, 2013 in the principal amount of ·$250,000 {the "second loan" and, collectively, with the first loan, the "loans") - and to ascertain artd determine whether the mortgaged premises consisting of a one . .family residential real property - which is located at 1349 President Street in Brooklyn, New York (the "premises"), and is occupied by defendant's parents, Moshe and Fayge Rubashkincan be sold as one parcel Defendant opposes the motion on, among other grounds (as pleaded in his ameti.ded answer), that both loans (and particularly the second loan) were usurious (i.e., that the effective interest rate charged on each loan exceeded the civil usury limit of 16%; thus rendering each such loan void). The motion was fully submitted on April 27, 2022, with the Court reserving decision. By prior order, Justice Vaughan denied, with. leave to renew after completion of discovery, plaintiffs pre..-Note of Issue ,notion for summary judgment, finding that defendant; at that time, '"sufficiently raised a question of fact as to the reasonableness of the fees and whether they should be counted in calculating the effectiveinterest rate of the subject loanf' (Prior Order at 9) (NYSCEF Doc. No. 40). In so holding, Justice Vaughan observed that: ''Where, as here, the interest rate stated in the note is already at the legal maximum, the question before the court is whether the amounts deducted from the loan proce.eds are reasonable or whether they are unreasonable and therefore constitute additional, disguised interest. The ·reasonableness of eachfee incurred and of(he purpose/or which it was incurred are questions offact." {Prior Order at 9) (co1lecting authorities omitted; emphasis adde:d). 2 [* 2] 2 of 4 FILED: KINGS COUNTY CLERK 09/01/2022 03:43 PM NYSCEF DOC. NO. 398 INDEX NO. 501618/2017 RECEIVED NYSCEF: 09/01/2022 On tenewal, plaintiffs instant rrtotion for sumiUaty judgment must be similarly denied. Whereas plaintiff has established his prima face entitlement to judgment as a matter of law by submitting the mortgages/notes evidencing the subject loans, together with evidet1ce of defendant's default(see AitroraLoanSavs., LLC v Enaw, 126AD3d 830 [2d Dept 20151, Iv dismissed25 NY3d 1096 [2015]), defendant, irt opposition to plaintiff's prima facie showing, has again raised triable issues of fact with respect to defendant's affirmative defense of usury (see Grodskyv Moore, 136 AD3d 865, 865 [2d Dept 2016]; Zanfini v Chandler, 79 AD3d 1031, 1032 [2d Dept 2010]; State Si. Bank & Tr. Co. v Boayke, 249 AD2d 535 [2d Dept 1998]; see also Ujueta v Euro-:Quest Corp,, 29 AD3d 895, 895 [2d Dept 2006] ["Whether a transaction constitutes a 'cover for usury' is a question of fact."]). Here, the complex issue of whethe,:r each of the subject loans is (or is not}usudous can be judicially detenrtined only at trial (accord O/iveto Holdings, Inc. v Rattenni, 110 AD3d 969, 971-972 [2d Dept 2013] [reversing on appeal a bench-trial decision that the loan was non-usurious]). Simplyput; the numerous affidavits and the conflicting pretrial testimony do not permit the- Court to resolve the issue of usury at the summaryjudgment stage as a matter of law. Accordingly, it is ORDERED that the plaintiffs inotion in Seq. No. 9 is denied in its e11tirety; and it is further 3 [* 3] 3 of 4 INDEX NO. 501618/2017 FILED: KINGS COUNTY CLERK 09/01/2022 03:43 PM NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/01/2022 ORDERED that defendant's counsel is directed to electronically serve a copy of this decision and order with notice of entry on both sets of plaintiffs counsel and to electronically file an affidavit of service thereof with the Kings County Clerk. This constitutes the decision and order of the Court. ENTER FORTHWITH, ON. LAWRENCE KNIPa. ADMINISTRATfVE JUDGE 4 [* 4] 4 of 4

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