Opinion
No. 570007/24
03-25-2024
Credit Acceptance Corporation, Plaintiff-Appellant, v. Miralys Garcia and Lucero Acevedo, Defendants-Respondents.
Unpublished Opinion
PRESENT: Tisch, J.P., James, Perez, JJ.
Plaintiff, as limited by its brief, appeals from those portions of an order of the Civil Court of the City of New York, Bronx County (John A. Howard-Algarin, J.), entered October 16, 2023, which denied its motion for summary judgment as against defendant Miralys Garcia, and its motion for a default judgment against defendant Lucero Acevedo, and sua sponte dismissed the complaint as against both defendants.
PER CURIAM.
Order (John A. Howard-Algarin, J.), entered October 16, 2023, modified to vacate that portion of the order that sua sponte dismissed the complaint against defendants, the complaint reinstated, and matter remanded for further consideration of the motion for a default judgment on the merits; as modified, order affirmed, without costs.
Civil Court erred in, sua sponte, granting summary judgment to defendants on a usury defense that was not raised by the only appearing defendant, Miralys Garcia (see Baseball Off. of Commr. v Marsh & McLennan, 295 A.D.2d 73, 82 [2002]), either in her answer or on the motion, upon which she defaulted, where plaintiff had no notice of the defense and thus no opportunity for opposition (see Quizhpe v Luvin Constr., 70 A.D.3d 912, 914 [2010]; Lanoce v Anderson, Banks, Curran & Donoghue, 259 A.D.2d 965 [1999]; Credit Acceptance Corp. v Holness, 81 Misc.3d 133 [A], 2023 NY Slip Op 51376[U][App Term, 1st Dept 2023]).
Since the motion court improperly denied plaintiff's motion for a default judgment based solely on the unpleaded usury defense, we reverse the denial of the motion as against defendant Acevedo, and remand the matter for further proceedings.
We sustain that portion of the order that denied summary judgment as against defendant Garcia solely for failure to submit a true and accurate copy of the retail installment contract, without prejudice to plaintiff's renewal of its motion upon proper papers.