http://law.justia.com/cases/new-york/other-courts/
Post# of 15187
Posted On: 06/19/2016 2:33:27 PM
http://law.justia.com/cases/new-york/other-co...141-u.html
Since usury has been established by clear and convincing evidence, the Court must next make a determination as to the statutory remedy that is applicable to case at bar. While the provisions of the Penal Law may apply, the Court finds that the General Obligations Law is equally controlling with respect to remediation. Section 5-511(1) of the General Obligations Law decrees that a contract that is found to be usurious is void ab initio and so continues in perpetuity, Wilkie v. Roosevelt 3 Johns. Cas. 206 (Supreme Court of Judicature, 1802), Sabine v. Paine 223 NY 401 (1918). The provisions of General Obligations Law Section 5-511(2) mandate that "...the court shall declare the same to be void, enjoin any prosecution thereon, and order the same to be surrendered and cancelled." G.O.L. § 5-511(2). The language of the statute is mandatory, leaves no room for judicial discretion and therefore requires a declaration by this Court that the entire obligation sought to be enforced by Plaintiff is null and void, from its very inception, Szerdahelyi v. Harris 67 NY2d 42 (1986).
Accordingly, the Court determines that the promissory note sought to be enforced by Plaintiff is void ab initio, that the same is and shall continue to be wholly unenforceable, that the same is and shall be cancelled and of no further force and effect and that Plaintiff shall be barred, enjoined and prohibited from taking any steps to enforce the promissory note or any portion thereof.
Since usury has been established by clear and convincing evidence, the Court must next make a determination as to the statutory remedy that is applicable to case at bar. While the provisions of the Penal Law may apply, the Court finds that the General Obligations Law is equally controlling with respect to remediation. Section 5-511(1) of the General Obligations Law decrees that a contract that is found to be usurious is void ab initio and so continues in perpetuity, Wilkie v. Roosevelt 3 Johns. Cas. 206 (Supreme Court of Judicature, 1802), Sabine v. Paine 223 NY 401 (1918). The provisions of General Obligations Law Section 5-511(2) mandate that "...the court shall declare the same to be void, enjoin any prosecution thereon, and order the same to be surrendered and cancelled." G.O.L. § 5-511(2). The language of the statute is mandatory, leaves no room for judicial discretion and therefore requires a declaration by this Court that the entire obligation sought to be enforced by Plaintiff is null and void, from its very inception, Szerdahelyi v. Harris 67 NY2d 42 (1986).
Accordingly, the Court determines that the promissory note sought to be enforced by Plaintiff is void ab initio, that the same is and shall continue to be wholly unenforceable, that the same is and shall be cancelled and of no further force and effect and that Plaintiff shall be barred, enjoined and prohibited from taking any steps to enforce the promissory note or any portion thereof.
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