Horowitz v. Griggs ( 1997 )

—In an action to foreclose a mortgage, the defendant Ruth Griggs appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Barasch, J.), dated October 15, 1996, as (a) granted the plaintiffs motion for summary judgment, and (b) struck the answer, affirmative defenses, and counterclaims.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the plaintiffs motion for summary judgment is denied, and the answer, affirmative defenses, and counterclaims are reinstated.

Upon the record before us, questions of fact exist as to whether a certain fee charged by the plaintiff rendered the subject loan usurious (see, Rumbaut v Reinhart, 216 AD2d 551), whether the transaction was tainted by fraud, and whether the Federal Truth in Lending Act (15 USC § 1601) is applicable to the loan so as to entitle the appellant to the remedy of rescission.

The appellant’s remaining contentions are without merit. Bracken, J. P., Copertino, Thompson and Luciano, JJ., concur.