Supreme Court, Appellate Division, Second Department, New York.
Peter L. WEINGARTEN, etc., Appellant,
v.
Joel MARCUS, et al., Respondents.
March 10, 1986.
 Mortgage foreclosure action was brought.   The Supreme Court, Kings County, 
Morton, J., entered order denying mortgagee's motion for summary judgment, and 
mortgagee appealed.   The Supreme Court, Appellate Division, held that:  (1) 
there was material issue of disputed fact as to whether mortgagee had conspired 
to exact usurious rate of interest, thus precluding summary judgment for 
mortgagee, and (2) mortgage was not purchase-money mortgage exempt from 
application of usury requirements.
 Order affirmed.
West Headnotes
[1] Judgment  185.1(3)
228k185.1(3) Most Cited Cases
Affirmation of attorney who lacks personal knowledge of facts generally does not 
have probative value so as to defeat motion for summary judgment.
[2] Judgment  185.1(3)
228k185.1(3) Most Cited Cases
Affirmation of counsel could be considered by trial court in opposition to 
motion for summary judgment, even though counsel lacked personal knowledge of 
facts, where affidavit was based upon documentary evidence annexed thereto.
[3] Judgment  185.3(15)
228k185.3(15) Most Cited Cases
There was material issue of disputed fact as to whether mortgagee conspired to 
exact usurious rate of interest on loan made to mortgagor, thus precluding 
summary judgment for mortgagee in mortgage foreclosure action, where affidavit 
of mortgagor and managing agent of subject premises contained statements 
attributed to party with whom mortgagee allegedly conspired to exact usurious 
rate of interest regarding such party's relationship with mortgagee and purpose 
behind loan, particularly where mortgagor had not had opportunity to conduct 
oral depositions of mortgagee and such party.
[4] Usury  34
398k34 Most Cited Cases
Mortgage was not purchase-money mortgage exempt from usury requirements, where 
interest charged was clearly not part of consideration for sale of real property 
or reflective of purchase price.
 **794 Isaac Anolic, P.C., New York City, for appellant.
 Samuel L. Hagan, Brooklyn, for respondent Joel Marcus.
 Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum and Samuel 
L. Hogan, of counsel, Ira Levine, on brief), for respondent Kadilac Funding Ltd.
 Before MANGANO, J.P., and THOMPSON, BROWN and WEINSTEIN, JJ.
 MEMORANDUM BY THE COURT.
 In an action to foreclose a mortgage on real property, the plaintiff appeals  
(1) from an order of the Supreme Court, Kings County (Morton, J.), dated January 
30, 1985, which denied his motion for summary judgment striking the defendants' 
answers without prejudice to renew after the completion of examinations before 
trial, and (2) as limited by his brief, from so much of an order of the same 
court, entered March 6, 1985, as upon reargument, adhered to its original 
determination.
 **795 Appeal from the order dated January 30, 1985, dismissed.   That order was 
superseded by the order entered March 6, 1985, made upon reargument.
 Order entered March 6, 1985, affirmed insofar as appealed from.
 The respondents Marcus and Kadilac Funding Limited are awarded one bill of 
costs.
 We find that the papers submitted in opposition to the plaintiff's motion for 
summary judgment raised sufficient factual questions to warrant the denial of 
that motion, at least until after the respondents Marcus and Kadilac Funding 
Limited (hereinafter the respondents) have had an opportunity to conduct oral 
depositions of the plaintiff and the defendant Samuel Cooper, with whom the 
plaintiff allegedly conspired to exact a usurious rate of interest on a loan 
made to the defendant Marcus.   The nature of the relationship between Cooper 
and the plaintiff, as well as their intent with respect to the structuring of 
the two mortgages in question, are issues exclusively within the knowledge of 
the plaintiff and Cooper.   *641 Therefore, summary judgment is inappropriate at 
this time (see, Franklin Nat. Bank of L.I. v. De Giacomo, 20 A.D.2d 797, 248 
N.Y.S.2d 586).
 [1][2][3] Although the affirmation of an attorney who lacks personal knowledge 
of the facts generally does not have any probative value to defeat a motion for 
summary judgment (see, e.g., Zuckerman v. City of New York, 49 N.Y.2d 557, 427 
N.Y.S.2d 595, 404 N.E.2d 718), if, as in the case at bar, the affirmation of 
counsel is based upon documentary evidence annexed thereto, it will be 
considered by the court (see, Zuckerman v. City of New York, supra;  Leandre v. 
Sharperson, 96 A.D.2d 883, 466 N.Y.S.2d 38).   In any event, there was other 
evidence to support the respondents' claim of usury, to wit, the affidavits of 
the defendant Joel Marcus and Robert Wiseman, the managing agent of the subject 
premises, which contained statements attributed to Cooper regarding his 
relationship with the plaintiff and the purpose behind the loan.   Cooper's 
denial of these statements in his own affidavit merely creates a question of 
credibility which cannot be resolved on a motion for summary judgment (see, 
e.g., Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 
N.E.2d 776).
 [4] Contrary to the plaintiff's assertion, the $33,000 mortgage was not a 
purchase-money mortgage exempt from the application of the usury statutes since 
the interest charged was clearly not part of the consideration for the sale of 
real property or reflective of the purchase price (see, Butts v. Samuel, 5 
A.D.2d 1008, 174 N.Y.S.2d 325;  Del Rubio v. Duchesne, 284 App.Div. 89, 130 
N.Y.S.2d 572;  cf. Barone v. Frie, 99 A.D.2d 129, 472 N.Y.S.2d 119).
499 N.Y.S.2d 794, 118 A.D.2d 640
END OF DOCUMENT

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

Peter L. WEINGARTEN, etc., Appellant,v.Joel MARCUS, et al., Respondents.

March 10, 1986.

 Mortgage foreclosure action was brought.   The Supreme Court, Kings County, Morton, J., entered order denying mortgagee's motion for summary judgment, and mortgagee appealed.   The Supreme Court, Appellate Division, held that:  (1) there was material issue of disputed fact as to whether mortgagee had conspired to exact usurious rate of interest, thus precluding summary judgment for mortgagee, and (2) mortgage was not purchase-money mortgage exempt from application of usury requirements.
 Order affirmed.

West Headnotes
[1] Judgment  185.1(3)228k185.1(3) Most Cited Cases
Affirmation of attorney who lacks personal knowledge of facts generally does not have probative value so as to defeat motion for summary judgment.
[2] Judgment  185.1(3)228k185.1(3) Most Cited Cases
Affirmation of counsel could be considered by trial court in opposition to motion for summary judgment, even though counsel lacked personal knowledge of facts, where affidavit was based upon documentary evidence annexed thereto.
[3] Judgment  185.3(15)228k185.3(15) Most Cited Cases
There was material issue of disputed fact as to whether mortgagee conspired to exact usurious rate of interest on loan made to mortgagor, thus precluding summary judgment for mortgagee in mortgage foreclosure action, where affidavit of mortgagor and managing agent of subject premises contained statements attributed to party with whom mortgagee allegedly conspired to exact usurious rate of interest regarding such party's relationship with mortgagee and purpose behind loan, particularly where mortgagor had not had opportunity to conduct oral depositions of mortgagee and such party.
[4] Usury  34398k34 Most Cited Cases
Mortgage was not purchase-money mortgage exempt from usury requirements, where interest charged was clearly not part of consideration for sale of real property or reflective of purchase price. **794 Isaac Anolic, P.C., New York City, for appellant.
 Samuel L. Hagan, Brooklyn, for respondent Joel Marcus.
 Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum and Samuel L. Hogan, of counsel, Ira Levine, on brief), for respondent Kadilac Funding Ltd.

 Before MANGANO, J.P., and THOMPSON, BROWN and WEINSTEIN, JJ.


 MEMORANDUM BY THE COURT.
 In an action to foreclose a mortgage on real property, the plaintiff appeals  (1) from an order of the Supreme Court, Kings County (Morton, J.), dated January 30, 1985, which denied his motion for summary judgment striking the defendants' answers without prejudice to renew after the completion of examinations before trial, and (2) as limited by his brief, from so much of an order of the same court, entered March 6, 1985, as upon reargument, adhered to its original determination.
 **795 Appeal from the order dated January 30, 1985, dismissed.   That order was superseded by the order entered March 6, 1985, made upon reargument.
 Order entered March 6, 1985, affirmed insofar as appealed from.
 The respondents Marcus and Kadilac Funding Limited are awarded one bill of costs.
 We find that the papers submitted in opposition to the plaintiff's motion for summary judgment raised sufficient factual questions to warrant the denial of that motion, at least until after the respondents Marcus and Kadilac Funding Limited (hereinafter the respondents) have had an opportunity to conduct oral depositions of the plaintiff and the defendant Samuel Cooper, with whom the plaintiff allegedly conspired to exact a usurious rate of interest on a loan made to the defendant Marcus.   The nature of the relationship between Cooper and the plaintiff, as well as their intent with respect to the structuring of the two mortgages in question, are issues exclusively within the knowledge of the plaintiff and Cooper.   *641 Therefore, summary judgment is inappropriate at this time (see, Franklin Nat. Bank of L.I. v. De Giacomo, 20 A.D.2d 797, 248 N.Y.S.2d 586).
 [1][2][3] Although the affirmation of an attorney who lacks personal knowledge of the facts generally does not have any probative value to defeat a motion for summary judgment (see, e.g., Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718), if, as in the case at bar, the affirmation of counsel is based upon documentary evidence annexed thereto, it will be considered by the court (see, Zuckerman v. City of New York, supra;  Leandre v. Sharperson, 96 A.D.2d 883, 466 N.Y.S.2d 38).   In any event, there was other evidence to support the respondents' claim of usury, to wit, the affidavits of the defendant Joel Marcus and Robert Wiseman, the managing agent of the subject premises, which contained statements attributed to Cooper regarding his relationship with the plaintiff and the purpose behind the loan.   Cooper's denial of these statements in his own affidavit merely creates a question of credibility which cannot be resolved on a motion for summary judgment (see, e.g., Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776).
 [4] Contrary to the plaintiff's assertion, the $33,000 mortgage was not a purchase-money mortgage exempt from the application of the usury statutes since the interest charged was clearly not part of the consideration for the sale of real property or reflective of the purchase price (see, Butts v. Samuel, 5 A.D.2d 1008, 174 N.Y.S.2d 325;  Del Rubio v. Duchesne, 284 App.Div. 89, 130 N.Y.S.2d 572;  cf. Barone v. Frie, 99 A.D.2d 129, 472 N.Y.S.2d 119).
499 N.Y.S.2d 794, 118 A.D.2d 640
END OF DOCUMENT