Romano v. Albright , 85 A.D.2d 508 ( 1981 )

Order, Supreme Court, New York County (Bemheim, J.), entered March 2, 1981 granting plaintiff’s motion for reargument, and, on reargument, adhering to original decision granting defendants’ motion for summary judgment dismissing the complaint, and denying plaintiff’s motion for partial summary judgment, is unanimously modified, on the law, to the extent that defendants’ motion for summary judgment is denied and all provisions of the original order and judgment entered June 17, 1980, other than the denial of plaintiff’s motion for partial summary judgment, are vacated, and the order is otherwise affirmed, without costs, without prejudice to an application by defendants to Special Term for leave to amend their answer. Whether the relationship between the parties was a joint venture not subject to the usury statutes or some kind of usurious loan presents a question of fact which should not have been decided against plaintiff on summary judgment. Concur — Birns, J. P., Sullivan, Ross, Carro and Silverman, JJ.