Opinion
Index No. CV-042-19/LF
07-21-2022
Ford Motor Credit Company LLC, Plaintiff, v. Melanie Quinn, Defendant, & FUCCILLO FORD OF NELLISTON, INC., Third-Party Defendant.
Rubin & Rothman, LLC, (Michael K. Johnson, Esq.), for the Plaintiff Todd Bennett, Esq., for the Defendant Melvin & Melvin, PLLC (Erin M. Tyreman, Esq.) for the Third Party Defendant.
Rubin & Rothman, LLC, (Michael K. Johnson, Esq.), for the Plaintiff
Todd Bennett, Esq., for the Defendant
Melvin & Melvin, PLLC (Erin M. Tyreman, Esq.) for the Third Party Defendant.
HON. JOSHUA P. BANNISTER, LITTLE FALLS CITY COURT JUDGE
Plaintiff Ford Motor Credit Company LLC through their attorney filed a Notice of Motion on January 31, 2020, seeking summary judgment pursuant to CPLR section 3212 "under a breach of contract theory by tendering the parties' signed written retail installment contract along with documentary evidence that establishes that Defendants defaulted in payment under the terms of the retail installment contract". Defendant Quinn through her attorney filed an affidavit in opposition on March 10, 2022.
The matter was scheduled for oral argument on the motions on June 3, 2022, when the Plaintiff Ford Credit appeared through a local attorney Cecilia Fagan, Esq., the Defendant Quinn appeared with her attorney, and Third-Party Defendant Fucillo Ford appeared with its attorney. At oral argument this Court asked the parties why it shouldn't search the record and award summary judgment in favor of Defendant Quinn because it appears that she properly revoked acceptance under NY UCC §2-608. Plaintiff Ford Credit made the argument on the record that there is a difference between revoking acceptance of the chattel and revoking the financing securing the chattel. This Court directed the parties to submit memorandum of law on that issue by July 7, 2022, as well as to bring to the Court's attention any acts by the Defendant Quinn that may have disrupted the revocation process such as refusing to sign the relevant paperwork to effect the revocation. Third-Party Defendant Fucillo Ford of Nelliston through their attorney filed a letter on July 5, 2022, declining to take a position on the motion for summary judgment. Defendant Quinn submitted a memorandum of law on July 7, 2022. This Court did not receive a written response from Plaintiff Ford Credit.
CPLR § 3212 [b] permits the court "to search the record and to grant summary judgment to a nonmoving party where, as here, it appears that a nonmoving party is entitled to such relief" (Cagina v. Onondaga County, 90 A.D.3d 1626, 1627 [4th Dept 2011]; see also: Bosun's Locker, Ltd. V. Fireman's Fund Ins. Companies, 147 A.D.2d 907 [4th Dept 1989]; Adams v. Margulis, 191 A.D.3d 1478 [4th Dept 2021]).
Defendant Quinn's Affidavit in Opposition filed on March 10, 2022 states:
"That I finally picked up the replacement truck on May 5, 2018, and immediately noticed upon entering the truck that it did not have any of the same features as the 2016 F-150 that I traded in.... That I drove the truck 32 miles and had it less than an hour. Being unhappy with the way the vehicle handled, I turned around and drove back to the dealership to return it, but the office was closed. I ended up leaving the truck and the keys at the dealership."
These events as described by the Defendant Quinn are undisputed by the other parties to this litigation. UCC § 2-608 provides:
"[1] The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it
(a) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or
(b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.
[2] Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
[3] A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them."
It is undisputed that Defendant Quinn returned the motor vehicle to Third-Party Defendant Fucillo's dealership the same day she picked it up after having only driven the vehicle 32 miles upon her discovery that the vehicle lacked four wheel drive, power windows, and power locks which materially impaired its value to her. Defendant Quinn's revocation of acceptance with respect to Third-Party Defendant Fucillo appears to be in textbook compliance with NY UCC § 2-608. The issue in this case is whether the debtor's revocation of acceptance with respect to the dealership follows to the loan to the creditor that secured the chattel?
16 CFR § 433.2 requires that the following language appear in these types of contracts:
"NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER."
This statutory provision is known as the "Holder Rule" which "was promulgated in order to cure business practices that separated the buyer's duty to pay for goods or services from the seller's reciprocal duty to perform as promised... [and where] [c]reditors dunned consumers and collected debts despite the consumers' claims and defenses against the sellers" (Diaz v. Paragon Motors of Woodside, Inc., 424 F.Supp.2d 519 [EDNY, 2006] [internal citation omitted]). This relevant statutory language is present near the end of the contract between the parties. This Court finds that Defendant Quinn properly revoked her acceptance with respect to the Third-Party Defendant Fucillo. As such, her revocation of acceptance was also proper against Plaintiff Ford Credit under both the plain terms of their contract and the Holder Rule.
Based upon the foregoing, and upon reading and filing of the notice of motion for summary judgment filed on January 31, 2020, and Affidavit in Opposition received on March 10, 2022, the letter from the Third-Party Defendant received on July 5, 2022, the memorandum of law from the Defendant Quinn received on July 7, 2022, and the pleadings in this case, and the motion having come on to be heard, NOW, upon the motion of the Plaintiff Ford Credit for summary judgment, it is
ORDERED, that the Plaintiff Ford Credit's motion for summary judgment be and the same hereby is DENIED insofar as the Court finds that upon searching the record pursuant to CPLR section 3212(b) that an award of summary judgment is properly awarded to the Defendant Quinn, and it is
ORDERED, that summary judgment is properly awarded to the Defendant Quinn DISMISSING the instant action against her, and it is
ORDERED, that the instant action against Third Party Defendant Fucillo is properly DISMISSED as moot.
This constitutes the decision and order of the court.