In Zanfini v. Chandler, 26 Misc. 3d 1239[A], 907 N.Y.S.2d 442, 2010 NY Slip. Op. 50465[U], 4 (NY Sup. Ct. Feb. 5, 2010) a defendant also alleged that: "The brokers, who retained broker's fees, were acting as agents for the plaintiff lender such that the fees should be deemed interest thereby increasing the interest rate above the maximum legal rate." In Zanfini, supra, the Court held that: "whether a broker's commission is cover for usury is a factual issue which must be demonstrated by clear and convincing evidence. Issues of fact exist as to whether the brokers were acting as the agent of the lender, and as to whether the lender was aware that the broker retained fees (Rumbaut v. Reinhart, 216 AD2d 551, 628 NYS2d 756 [1995]). In addition, where usury does not appear on the face of the note, usury is a question of fact. ... Thus, summary judgment is not warranted (Hort v. Devine, 1 AD3d 266, 769 NYS2d 376 [2003])."