SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
May 3, 2013
BANK OF AMERICA, N.A.,
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 24, 2010.
Bank of Am., N.A. v Ardelean
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 3, 2013
PRESENT: ALIOTTA, J.P., PESCE and RIOS, JJ
The order granted plaintiff's motion for summary judgment.
ORDERED that the order is reversed, without costs, and plaintiff's motion for summary judgment is denied.
In this action by plaintiff to recover a deficiency judgment following its sale of a motor vehicle after defendant's default in payment of a retail installment agreement to purchase the vehicle, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that the sale was not done in a commercially reasonable manner. The Civil Court granted the motion and awarded plaintiff the principal sum of $9,899.53.
The retail installment contract involves a secured transaction and is
governed by article 9 of the Uniform Commercial Code. A secured party
seeking a deficiency judgment from the debtor after a sale of the
collateral has the burden of establishing that the sale of the
collateral, including the method, time, manner, place and other terms
of the sale, was commercially reasonable, where, as here, the debtor
places the secured party's compliance in issue (see UCC 9-610 [b];
9-626 [a] ; GMAC v Jones, 89 AD3d 985 ; Mack Fin. Corp. v
Knoud, 98 AD2d 713 ; HSBC Bank USA v Amagli, 18 Misc 3d 139[A],
2008 NY Slip Op 50350[U] [App Term, 2d & 11th Jud Dists 2008]). In the instant case, there was a wide discrepancy
between defendant's purchase price of the vehicle, which defendant possessed for approximately one month, and the proceeds of the sale of the collateral.
Plaintiff's submissions fail to set forth sufficient facts surrounding the disposition and sale of the collateral so as to meet its burden of establishing that the sale was
conducted in a commercially reasonable manner (see UCC 9-610 [b]; 9-626 [a] ; Kohler v Ford
Motor Credit Co., 93 AD2d 205 ). Consequently, plaintiff was not
entitled to summary judgment.
In view of the foregoing, we need not pass upon the remaining issues raised on appeal.
Accordingly, the order granting plaintiff's motion for summary judgment is reversed and plaintiff's motion is denied.
Aliotta, J.P., Pesce and Rios, JJ., concur. Decision Date: May 03, 2013
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