CPLR § 3218 Judgment by confession
Shasho v Pruco Life Ins. Co. of N.J., 2009 NY Slip Op 08000 (App. Div., 2nd, 2009)
The plaintiff seeks a preliminary injunction based, in part, on her
contention that the confession of judgment was obtained in connection
with a usurious promissory note. "No law regulating the maximum rate of
interest which may be charged, taken or received shall apply to any
loan or forebearance in the amount of two million five hundred thousand
dollars or more" (General Obligations Law § 5-501[6][b]). Thus, the
plaintiff failed to establish a likelihood of success on her claim that
a promissory note that she and her late husband executed in favor of
the defendant, and upon which the confession of judgment was
predicated, is usurious, as the face of the note provides that the
amount owed was $3,500,000 (see General Obligations Law 5-501[6][b]; Tides Edge Corp. v Central Fed. Sav., 151 AD2d 741; see also Ujueta v Euro-Quest Corp., 29 AD3d 895; Hochman v LaRea, 14
AD3d 653, 654). Moreover, the confession of judgment was signed and
notarized on December 31, 2005, and, thus, at the time that the Supreme
Court determined that branch of plaintiff's motion which was for a
preliminary injunction, the three-year period for filing the confession
of judgment (see CPLR 3218[b]) had yet to lapse. Consequently,
the Supreme Court properly denied that branch of the plaintiff's motion
which was for a preliminary injunction enjoining the defendant from
entering, filing, and enforcing the confession of judgment. Further,
the Supreme Court properly permitted the release of the proceeds from
certain life insurance policies to the defendant.
Nonetheless, the defendant failed to file the confession of
judgment by December 31, 2008, and thus failed to file it within three
years after the plaintiff's affidavit of confession was executed.
Accordingly, the confession of judgment became void after that date (see CPLR 3218[b]; Ray v Ray, 61
AD3d 442, 443). Thus, in the order dated March 12, 2009, the Supreme
Court erred in granting that branch of the defendant's application
which was, in effect, to permit him to enter, file, and enforce the
confession of judgment.
The bold is mine
bruteforcelawyer.com 