Opinion
May 25, 1983
Appeal from the Supreme Court, Wayne County, Siracuse, J.
Present — Callahan, J.P., Denman, Boomer, Green and Schnepp, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Defendants appeal from an order granting plaintiff summary judgment in an action on a written guarantee of a debt. Defendants claim that they are not liable since the debt was secured by collateral, and the plaintiff seized and accepted the collateral in full satisfaction of the debt. An election to take the collateral in full satisfaction will not be implied; it must be made by written notice to the debtor ( Flickinger Co. v 18 Genesee Corp., 71 A.D.2d 382, 385). Since no such written notice was given, defendants' claim must fail. Defendants further claim that summary judgment was improper because plaintiff did not submit evidence that it complied with section 9-504 of the Uniform Commercial Code, which required plaintiff to dispose of the collateral in a commercially reasonable manner after notice to the debtor. Failure to comply with that section, however, did not deprive plaintiff of its right to summary judgment, but upon the trial to determine the amount of the damages, plaintiff must prove the fair market value of the collateral seized, which must be deducted from the debt to establish the deficiency ( Flickinger Co. v 18 Genesee Corp., supra, p 385; Marine Midland Bank v Connelly, 79 A.D.2d 1102). There being no issue of fact other than the amount of the damages, the court properly granted summary judgment. Defendants correctly assert that the order directing the assessment of damages by the court alone improperly deprived them of their right to a jury trial. The action is one in which the defendants were entitled to a jury trial as of right, and there is nothing in the record to show that they have waived that right. The order should be amended, therefore, to direct the assessment of damages by a court and jury ( Livingston v Blumenthal, 248 App. Div. 138, 140).