Majority
p. 416Joseph Bietola, Appellant, v William T. McCue, Defendant, and Teri Towe, Respondent and Third-Party Plaintiff-Respondent. J.P. Morgan Chase & Co., Third-Party Defendant-Respondent. [764 NYS2d 692]
—Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about January 10, 2003, which, inter alia, granted the respective cross motions of defendant Towe and third-party defendant J.P. Morgan Chase & Co. for summary judgment dismissing the complaint and third-party complaint, unanimously affirmed, with costs.
Plaintiff is precluded from any recovery on this two-month loan, because the contracted rate of interest of 25% was clearly
p. 417
in violation of the prohibition against usury (see General Obligations Law § 5-501 et seq.; Banking Law § 14-a; Seidel v 18 E. 17th St. Owners, 79 NY2d 735 , 740 [1992]). Equally specious is plaintiff’s effort to convert this action against defendant Towe into one for money had and received. Towe never received the money; it had disappeared into the hands of his unscrupulous former attorney-in-fact long before he was even aware that the money had fleetingly passed through his account.
We have considered plaintiff’s remaining arguments and find them unavailing. Concur — Tom, J.P., Sullivan, Rosenberger, Lerner and Friedman, JJ.
Cases cited
- Seidel v. 18 East 17th Street Owners, Inc. 79 NY2d 735 at 740 p. 417