Opinion
No. 571097/23
12-18-2023
Credit Acceptance Corporation, Plaintiff-Appellant, v. Jacqueline M. Holness, Defendant-Respondent.
Unpublished Opinion
PRESENT: Hagler, P.J., Brigantti, Tisch, JJ.
PER CURIAM.
Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Jeffrey S. Zellan, J.), entered July 24, 2023, which denied its motion to strike defendant's answer and for summary judgment, and, upon a search of the record, granted summary judgment to defendant dismissing the complaint, pursuant to CPLR 3212(b).
Order (Jeffrey S. Zellan, J.), entered July 24, 2023, reversed, without costs, the grant of summary judgment to defendant is vacated, the complaint reinstated, and the matter remanded for a determination of plaintiff's motion on the merits.
Civil Court erred in searching the record and granting summary judgment to defendant on a usury defense that was not raised by defendant (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, and because 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]).
We remand the matter for further proceedings, including disposition of plaintiff's motion - denied as moot below.