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May 31, 2016 – M&H Defeats Attempt To Challenge The Terms Of Promissory Note

In this action to enforce a promissory note, the Appellate Division, First Judicial Department, in accordance with M&H’s arguments on appeal, affirmed the lower court’s denial of the co-defendants’ motion for leave to amend their answer, finding that the promissory note was not usurious as a matter of law.

Moyal v Sullo
2016 NY Slip Op 04154
Decided on May 31, 2016
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 31, 2016

Friedman, J.P., Renwick, Moskowitz, Richter, Kapnick, JJ.

1339N 157850/14

[*1] David Moyal, Suing Individually and on Behalf of Circle Press, Inc., Plaintiffs,


Joseph Sullo, Defendant-Respondent, Robert Malta, et al., Defendants-Appellants, Circle Press, Inc., Nominal Defendant.

Catafago Fini LLP, New York (Adam Sherman of counsel), for appellants.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondent.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered on or about October 19, 2015, which, to the extent appealed from, denied defendants Robert Malta and GMD 444, LLC’s (collectively Malta) motion for leave to amend their answer to add a usurious loan cross claim against defendant Joseph Sullo, unanimously affirmed, with costs.

The motion court properly denied the motion, because the proposed usurious loan cross claim is palpably without merit (see Gordon v Oster, 36 AD3d 525, 525 [1st Dept 2007]). The per annum interest rate on the note executed by Malta does not exceed the maximum per annum interest rate provided in either the civil usury statute or the relevant criminal usury statute (see General Obligations Law § 5-501 [civil]; Banking Law § 14-a[1] [civil]; Penal Law § 190.40 [criminal]; Blue Wolf Capital Fund II, L.P. v American Stevedoring Inc., 105 AD3d 178, 182 [1st Dept 2013]).

We have considered Malta’s remaining arguments and find them unavailing.



ENTERED: MAY 31, 2016