BABINSKY v. Masco Contractor Services East, Inc., et al., Defendants. (2004)

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered September 11, 2003, which, in a mortgage foreclosure action, insofar as appealed from, denied plaintiff's motion for summary judgment appointing a referee to compute, and striking defendant-respondent mortgagor's counterclaims seeking, inter alia, a declaration that the mortgage note is usurious, unanimously affirmed, with costs.

The motion court correctly held that even if the note were exempt from the defense of civil usury because given in connection with a purchase money mortgage, it remains subject to the defense of criminal usury (see C & M Air Sys. v. Custom Land Dev. Group II, 262 A.D.2d 440, 440-441, 692 N.Y.S.2d 146 [1999] ), and that an issue of fact as to criminal usurious intent is raised by the unexplained discrepancy between the amount stated on the note and the substantially lesser amount that defendant claims to have received from plaintiff (see Karas v. Shur, 189 A.D.2d 856, 592 N.Y.S.2d 779 [1993] ).