The following e-filed documents, listed by NYSCEF document number (Motion 007) 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204 were read on this motion for SUMMARY JUDGMENT. DECISION ORDER ON MOTION Plaintiff sued defendants for allegedly failing to pay for goods delivered to defendants under a contract. Plaintiff is seeking $38,045.19, plus interest (computed under the contract at 1.5 percent per month) and attorney fees (also as provided for under the contract). Plaintiff now moves for summary judgment under CPLR 3212 against defendants 2254 Third Ave Dept Store Inc. and Freddy Srour. Although plaintiff styles the motion as one for partial summary judgment (presumably because the motion has been brought only on some of plaintiff’s causes of action), plaintiff seeks the full amount of $38,045.19 plus interest and attorney fees. In opposition, defendants contend that (i) plaintiff has failed to establish prima facie that it is entitled to judgment as a matter of law against defendant Srour; and (ii) defendants are not liable regardless because the interest rate set by the contract is usurious. This court concludes that plaintiff is entitled to summary judgment. DISCUSSION On a summary-judgment motion under CPLR 3212, the movant must “establish[] a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (Deleon v. New York City Sanitation Dept., 25 NY3d 1102, 1106 [2015] [internal quotation marks omitted).) "Once this showing has been made…, the burden shifts to the party opposing the motion…to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986].) Reliance upon mere conclusions or unsubstantiated allegations will not defeat summary judgment. (Zuckerman v. New York, 49 NY2d 557, 562 [1980].) I. Whether Plaintiff Has Established Entitlement to Judgment as a Matter of Law on Liability Plaintiff’s papers make out a prima facie showing that 2254 Third entered into the agreement with plaintiff and that 2254 Third failed to pay $38,045.19 that it owed for products delivered by plaintiff under the agreement. The agreement expressly provides for an interest rate on overdue payments of 1.5 percent per month (or 18 percent annually) and also that 2254 must pay reasonable attorney fees incurred by plaintiff in any action to collect overdue payments. 2254 Third does not attempt to dispute this showing or demonstrate the existence of a material dispute of fact. The chief dispute between the parties as to liability is instead whether Srour can be held personally liable for sums owed by 2254 Third under the contract. Plaintiff argues that this court should hold Srour liable on a corporate-veil-piercing theory. Whether to pierce the corporate veil in a given case is a contextual, fact-specific inquiry. The key questions in this inquiry are whether (i) the individual exercises complete domination and control over the corporation and fails to observe corporate formalities, and (ii) the individual uses that domination over the corporation to perpetrate a wrong — for example by causing the corporation to be undercapitalized and therefore judgment-proof. (See Baby Phat Holding Co., LLC v. Kellwood Co., 123 AD3d 405, 407 [1st Dept 2014].) Here, plaintiff has introduced evidence that (i) Srour is the sole officer, shareholder, and director of 2254 Third; (ii) 2254 Third has failed to maintain basic corporate records; (iii) Srour commingles his personal funds with corporate funds; and (iv) 2254 has no separate corporate bank account. These facts together establish prima facie that Srour exercises complete domination and control over 2254 Third — and that Srour has exercised that control to render 2254 Third unable to pay debts that it owes to entities such as plaintiff. In opposing summary judgment, Srour does not introduce any evidence that might create a material dispute of fact on these points. Instead, Srour relies solely on conclusory denials in an affidavit. That is not sufficient to create a dispute of fact requiring trial. (See S. J. Capelin Assocs., Inc. v. Globe Mfg. Corp., 34 NY2d 338, 341-342 [1974].) II. Whether The Interest Is Usurious. Srour also contends, though, that he cannot be held liable regardless, because the contract is rendered void because it set a usurious rate of interest. This court disagrees. To be sure, Srour is correct that interest under the contract is 18 percent annually and that New York’s civil-usury cap on interest is 16 percent annually. (See General Obligations Law §5-501 [1]-[2] Banking Law §14-a [1].) That alone does not render the contract void for usury, however. Even where an interest rate exceeds the statutory cap, the rate is not usurious if interest comes due only in the event of a default: In that circumstance the debtor can avoid interest by timely paying the principal. (See 72nd Ninth LLC v. 753 Ninth Ave Realty LLC, 168 AD3d 597, 598 [1st Dept 2019]; Bhatara v. Futterman, 122 AD3d 509, 510 [1st Dept 2014].) And the contract in this case plainly provides that interest begins to accrue at 1.5 percent per month only once merchandise sold under the contract has remained unpaid past the due date for payment. Accordingly, for the foregoing reasons it is hereby ORDERED that plaintiff’s motion for summary judgment under CPLR 3212 is granted; and it is ADJUDGED AND DECREED that plaintiff shall have judgment in the amount of $38,045.19, with interest running at 1.5 percent per month from January 6, 2017, plus costs, disbursements, and reasonable attorney fees; and it is further ORDERED that the issue of the amount of reasonable attorney fees is hereby referred to a Special Referee to hear and report; and it is further ORDERED that plaintiff shall serve a copy of this order with notice of its entry on all parties and on the Special Referee Clerk in the General Clerk’s Office (60 Centre Street, Room 119), who is directed to place this matter on the calendar of the Special Referee’s Part for the earliest convenient date. Dated: June 1, 2020 CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
