Dean v. John B. Pike & Son, Inc.

— Order and judgment unanimously modified on the law and as modified affirmed without *943costs, in accordance with the following memorandum: Special Term erred in refusing to grant summary judgment dismissing plaintiffs claim for interest in excess of the statutory rate. The court has the discretionary power to fix the rate of interest only where equitable relief is sought (CPLR 5001 [a]; Bosco v Alicino, 37 AD2d 552). In this case, plaintiff claimed that he and defendant John B. Pike & Son were engaged in a joint venture and, as a result, that he was entitled to equitable relief in the nature…