Opinion
November 10, 1986
Appeal from the Supreme Court, Onondaga County, Tenney, J.
Present — Doerr, J.P., Boomer, Green, Pine and Balio, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Plaintiff seeks to recover a deficiency judgment from defendant based upon the difference between the amount due plaintiff under a lease agreement and the amount plaintiff received from the sale of the collateral following repossession. Special Term denied plaintiff's motion for summary judgment on the ground that plaintiff's failure to give defendant reasonable notice of the sale (see, Uniform Commercial Code § 9-504) precluded recovery of a deficiency judgment.
Despite a creditor's failure to give notice of sale of the security to the debtor, a creditor may still recover a deficiency judgment against the debtor by proving the amount of the debt, the fair market value of the security and the resulting deficiency (Security Trust Co. v Thomas, 59 A.D.2d 242, 246-247). Here, plaintiff has established defendant's default and the amount of the debt, and there is an issue of fact only as to the fair market value of the secured property. There being no issue other than the amount of damages, plaintiff is entitled to partial summary judgment on the issue of liability and the matter is remitted to Onondaga County Supreme Court for an assessment of damages (see, CPLR 3212 [c], [e]; Chrysler Credit Corp. v Mitchell, 94 A.D.2d 971; Flickinger Co. v 18 Genesee Corp., 71 A.D.2d 382, 385-386).