Arbuzova v Skalet
2012 NY Slip Op 01418 [92 AD3d 816]
February 21, 2012
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 28, 2012


Lilia Arbuzova, Respondent,
v
Yury Skalet et al., Appellants.

[*1] Sanford Solny, Brooklyn, N.Y., for appellants.

Steven B. Sarshik, New York, N.Y., for respondent.

In an action to recover on a promissory note, the defendants appeal from a judgment of the Supreme Court, Kings County (Schmidt, J.), entered March 28, 2011, which, upon an order of the same court dated February 17, 2011, granting the plaintiff's motion for summary judgment on the complaint and denying their cross motion for summary judgment dismissing the complaint, is in favor of the plaintiff and against them in the principal sum of $125,000.

Ordered that the judgment is affirmed, with costs.

A corporation is prohibited from asserting the defense of civil usury (see General Obligations Law § 5-521; Schneider v Phelps, 41 NY2d 238, 242 [1977]; Tower Funding v Berry Realty, 302 AD2d 513, 514 [2003]). An individual guarantor of a corporate obligation is also precluded from raising such a defense (see Schneider v Phelps, 41 NY2d at 242; Tower Funding v Berry Realty, 302 AD2d at 514). Here, although the interest rate in the subject promissory note exceeded 16% per annum (see General Obligations Law § 5-501 [1], [2]; Banking Law § 14-a [1]; Tower Funding v Berry Realty, 302 AD2d at 514), the plaintiff established, prima facie, that the loan was made to the corporate defendant, Bais Seller Realty, with the defendant Yury Skalet as personal guarantor of the loan (see Tower Funding v Berry Realty, 302 AD2d at 514). In opposition to this prima facie showing, the defendants failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on her complaint and denied the defendants' cross motion for summary judgment dismissing the complaint. Dillon, J.P., Florio, Chambers and Roman, JJ., concur.