Opinion
No. 2010–2775 Q C.
2013-05-3
BANK OF AMERICA, N.A., Respondent, v. Cornelia ARDELEAN, Appellant.
Present: ALIOTTA, J.P., PESCE and RIOS, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 24, 2010. 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 ( seeUCC 9–610[b]; 9–626[a][1]; GMAC v. Jones, 89 AD3d 985 [2011];Mack Fin. Corp. v. Knoud, 98 A.D.2d 713 [1983];HSBC Bank USA v. Amagli, 18 Misc.3d 139[A], 2008 N.Y. 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 ( seeUCC 9–610[b]; 9–626[a][1]; Kohler v. Ford Motor Credit Co., 93 A.D.2d 205 [1983] ). 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.