1080 Warburton Corp. v. Torrisi , 561 N.Y.S.2d 302 ( 1990 )

In a proceeding pursuant to RPAPL 1921, inter alia, to cancel and discharge a purchase-money mortgage, the petitioners appeal from an order of the Supreme Court, Westchester County (Donovan, J.), entered April 26, 1989, which denied their application to declare a loan transaction null and void because of a usurious interest rate, and ordered the creation of replacement promissory notes, pledges and security agreements conforming to language and terms directed by the court.

Ordered that the order is affirmed, with costs.

Contrary to the petitioners’ contention, we find that the Supreme Court properly rejected their claim of usury. The so-called "loan transaction” in this case, a contractual arrangement between the parties, entitled the respondent sellers, John V. Torrisi, Joseph L. Torrisi and Angelo M. Torrisi, to receive an interest in a cooperative conversion plan upon their execution of a document evidencing a satisfaction of a purchase-money mortgage they took back as part of the sale of their apartment building to the petitioner purchasers. Thus, there was no loan or forebearance of money, a necessary requirement before there can be a finding of usury (see, General Obligations Law § 5-501; Szerdahelyi v Harris, 67 NY2d 42, 46; Orvis v Curtiss, 157 NY 657; DeSimon v Ogden Assocs., 88 AD2d 472, 477-481).

We have considered the petitioners’ remaining contention and find it to be without merit. Mangano, P. J., Thompson, Sullivan and Rosenblatt, JJ., concur.