
    National Bank of Northern New York, Respondent, v Stanley H. Graham et al., Appellants.
   Order unanimously affirmed, with costs, for the reasons stated in the memorandum decision at Supreme Court, Jefferson County, Sullivan, J. Memorandum: We add only the following. The judgment awarded plaintiff the balance due on loans made by it under an overdraft-checking agreement (Banking Law, § 108, subd 5, par [a]). Although it need not be reviewed (Telmark, Inc. v National Commercial Bank & Trust Co., 73 AD2d 777), we find nonetheless that defendants’ claim of usury, raised for the first time on appeal, is without merit (Brown v First Nat. City Bank, 503 F2d 114; American Express Co. v Brown, 392 F Supp 235). Nor did the court err in granting summary judgment where, as here, plaintiff’s prior motion for the same relief was denied “without prejudice”. In those circumstances, this motion required a showing of newly discovered evidence (Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:21, 1980-1981 Pocket Part, p 82). Plaintiff satisfied that burden and demonstrated that a trial of the action was unwarranted. (Appeal from order of Jefferson Supreme Court, Sullivan, J. — summary judgment.) Present — Dillon, P. J., Callahan, Doerr, Moule and Schnepp, JJ.  