BIETOLA v. McCUE

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Supreme Court, Appellate Division, First Department, New York.

Joseph BIETOLA, Plaintiff-Appellant, v. William T. McCUE, Defendant.

Teri Towe, Defendant/Third-Party Plaintiff-Respondent, v. J.P. Morgan Chase & Co., etc., Third-Party Defendant-Respondent.

Decided: September 30, 2003

TOM, J.P., SULLIVAN, ROSENBERGER, LERNER and FRIEDMAN, JJ. Richard Pu, for Plaintiff-Appellant. Jeremy A. Welfer, for Defendant/Third-Party Plaintiff-Respondent. Kevin J. Flynn, for Third-Party Defendant-Respondent.

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 in violation of the prohibition against usury (see General Obligations Law § 5-511;  Seidel v. 18 E. 17th St. Owners, 79 N.Y.2d 735, 740, 586 N.Y.S.2d 240, 598 N.E.2d 7).   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.