Opinion
2005-832 SC.
Decided May 25, 2006.
Appeal from an order of the District Court of Suffolk County, Fourth District (C. Stephen Hackeling, J.), entered April 25, 2005. The order denied plaintiff's motion for, inter alia, summary judgment as against defendant Eliot S. Levine and dismissal of his counterclaim.
Order affirmed without costs.
PRESENT: RUDOLPH, P.J., TANENBAUM and LIPPMAN, JJ.
Plaintiff commenced this consumer credit transaction to recover a deficiency judgment based on a default of a motor vehicle lease which resulted in the vehicle's repossession and ultimate sale. Following discovery, plaintiff moved for summary judgment as against defendant Eliot S. Levine, the guarantor under said lease. The denial of plaintiff's motion is the subject of this appeal.
A lease of an automobile is a secured transaction governed by Article 9 of the Uniform Commercial Code ( see Ford Motor Credit Co., Inc. v. Racwell Constr., Inc., 24 AD3d 500). Where the secured party, plaintiff herein, seeks to recover a deficiency from the guarantor after the sale of the collateral ( see generally Personal Property Law § 340), it need not prove compliance with the requirement of establishing that the sale was made in a "commercially reasonable manner," unless, as in the case at bar, the debtor or secondary obligor places the secured party's compliance in issue (UCC 626 [a] [1]). Once placed in issue, the secured party has the burden of establishing compliance ( see UCC 626 [a] [2]; see also Atrium Funding Corp. v. McRoberts, 10 Misc 3d 1077 [A], 2006 NY Slip Op 50107[U]).
In order to establish a prima facie entitlement to recover a deficiency judgment, plaintiff was required to establish that the sale of the subject vehicle was made in a commercially reasonable manner ( see Uniform Commercial Code §§ 9-610; 9-626[a][1]; Ford Motor Credit Co. v. Hernandez, 210 AD2d 656; Mack Fin. Corp. v. Knoud, 98 AD2d 713; Kohler v. Ford Motor Credit Co., 93 AD2d 205). In the instant case, plaintiff's submissions fail to set forth sufficient facts and circumstances surrounding the disposition and sale of the repossessed vehicle so as to establish that the sale was conducted in a commercially reasonable manner.
Defendant's counterclaim was based, at least in part, on plaintiff's alleged failure to properly notify said defendant of the repossession and sale of the vehicle and not, as plaintiff contends, on a violation of the Fair Credit Reporting Act. Therefore, plaintiff's allegation that the defendant did not allege facts sufficient to establish a violation of the Fair Credit Reporting Act, does not provide a basis for dismissal of the counterclaim.
In view of the foregoing, plaintiff's motion for summary judgment was properly denied.
Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.