Power Up Lending Group, Ltd. v Cardinal Resources, Inc., 2018 NY Slip Op 02351 [2d Dept 2018]
The Supreme Court erred when it severed those provisions of the agreements which it found to be illegal pursuant to the criminal usury statute. Usury is an affirmative defense which a defendant must either assert in an answer or as a ground to move to dismiss the complaint pursuant to CPLR 3211. Otherwise, the defense is waived (see CPLR 3211[e]; 3018[b]; Whittemore v Yeo, 112 AD3d 475, 476; Hochman v LaRea, 14 AD3d 653, 654).
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