Patti Billard, Appellant, v. Page One Auto Sales, Defendant, and Gary Palumbo et al., Respondents

Patti Billard, Appellant, v Page One Auto Sales, Defendant, and Gary Palumbo et al., Respondents. [864 NYS2d 359] [MAJORITY] Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered February 12, 2007 in a breach of contract action. The order, insofar as appealed from, granted the cross motion of defendants Gary Palumbo, individually, and Robert Palumbo, individually, for summary judgment. It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs, the cross motion is denied and the complaint against defendants Gary Palumbo, individually, and Robert Palumbo, individually, is reinstated. Memorandum: Plaintiff commenced this action seeking to recover sums due on a promissory note, and the Palumbo defendants, the guarantors on the note, thereafter cross-moved for summary judgment dismissing the complaint against them on the ground that the interest rate on the note was usurious. We conclude that Supreme Court erred in granting the cross motion. Where, as here, “the terms of the agreement are in issue, and the evidence is conflicting, the lender is entitled to a presumption that he [or she] did not make a loan at a usurious rate” (Giventer v Arnow, 37 NY2d 305, 309 [1975]). Present— Smith, J.P., Lunn, Fahey and Peradotto, JJ.