Small Business Capital Corp. v. De Freitas , 24 A.D.2d 997 ( 1965 )

In an action to foreclose a second mortgage on real property, the defendant Winston M. De Freitas appeals from: (1) a judgment of foreclosure and sale of the Supreme Court, Suffolk County, entered January 7, 1965; (2) an order of said court, entered October 5, 1964, which granted plaintiff’s motion for summary judgment; (3) an order of said court, entered February 8, 1965 upon reargument, which adhered to the court’s original decision; and (4) a resettled judgment of foreclosure and sale, entered March 19, 1965. Appeals from original judgment of foreclosure and sale and from order entered October 5, 1964 dismissed as academic, without costs. Said judgment and order were superseded by the later, resettled judgment and order granting reargument. Resettled judgment and order entered February 8, 1965. upon reargument affirmed, with one bill of $10 costs and disbursements. Ho opinion. Christ, Acting P. J., Hill, Rabin and Hopkins, JJ., concur; Benjamin, J., dissents and votes to reverse and to deny the motion for summary judgment, with the following memorandum: In my opinion, this record presents complicated fact issues as to possible overreaching and usury concealed behind an ostensibly lawful individual guarantee of a corporate obligation. Also present is an equally complicated fact issue as to whether the primary collateral security for the corporate obligation (namely, two chattel mortgages) had been so marshaled and used by plaintiff as to effect such proper and equitable reduction, or perhaps even elimination, of the obligation as defendant was entitled. Those issues should not be disposed of summarily on affidavits, but instead should be thoroughly aired and explored at a plenary trial.