Simsbury Fund, Inc. v. New St. Louis Associates

—Resettled judgment, Supreme Court, New York County (Walter Tolub, J.; upon decision of Eugene Nardelli, J.) entered October 5, 1993, and order, same court and Justice, entered on or about October 25, 1993, which dismissed plaintiffs complaint after trial on the ground that the agreements sued upon were usurious and void, and denied plaintiffs motion pursuant to CPLR 4404 to set aside Justice Nardelli’s decision, respectively, unanimously affirmed, with costs.

The provision in the subject agreements permitting plaintiff to demand, as it did, interest not only on the money it advanced to defendant but also on the escrowed funds to which defendant had no access made the agreements usurious since, as the IAS Court found, it effectively required defendant to make combined interest payments at an annual rate of approximately 80% (Penal Law § 190.40; see, East Riv. Bank v Hoyt, 32 NY 119). We also agree with the IAS Court that the possibility of a nonusurious rate of interest in the event of defendant’s full performance under the agreements, and language therein purporting to reduce the interest rate to the legal rate in the event of a finding of usury, do not make the subject agreements nonusurious (see, Durst v Abrash, 22 AD2d 39, 42, affd 17 NY2d 445). Concur—Carro, J. P., Rosenberger, Wallach, Kupferman and Tom, JJ.