Opinion
CV-011080-17/QU
09-17-2019
Toyota Motor Credit Corporation, Plaintiff, v. Sara Kalantarov, Defendant.
Rubin & Rothman, LLC Counsel for Plaintiff Toyota Motor Credit Corporation 1787 Veterans Highway, Suite 32 P.O. Box 9003 Islandia, New York 11749 Michael K. Johnson, Esq. Sara Kalantarov Pro Se Defendant
Rubin & Rothman, LLC Counsel for Plaintiff Toyota Motor Credit Corporation 1787 Veterans Highway, Suite 32 P.O. Box 9003 Islandia, New York 11749 Michael K. Johnson, Esq. Sara Kalantarov Pro Se Defendant John C.V. Katsanos, J.
I.Background
On or about April 30, 2014, defendant Sara Kalantarov (the "Defendant") entered into a retail installment contract (the "Contract") for the purchase of a new vehicle (the "Vehicle") from Atlantic Toyota. Atlantic Toyota subsequently assigned the Contract to plaintiff Toyota Motor Credit Corporation (the "Plaintiff"). Defendant financed $40,295.43 of the purchase and the Contract provides that the Defendant was required to make regular monthly payments of $629.62 beginning on June 14, 2014 and ending on May 14, 2020.
The Contract further provides:
Repossession of the Vehicle for Failure to Pay. If you default under this contract, the Creditor can take the vehicle from you (repossession). . . .
Getting the Vehicle Back After Repossession. If the Creditor repossesses the vehicle, you have the right to get it back (redeem) by paying any past due payments (the unaccelerated amount you owe), plus any late charges, the cost of taking and storing the vehicle and other expenses that the creditor has had. Your right to redeem will end when the vehicle is sold or when the Creditor enters into a contract for its disposition, whichever occurs first.
Sale of the Repossessed Vehicle. The Creditor will send you a written notice of sale at least 10 days before selling this vehicle. If you do not redeem the vehicle by the date on the notice, the Creditor can sell it. The Creditor will use the net proceeds of the sale to pay all or part of the amount you owe. . . .
If you owe more than the net proceeds of sale, you agree to pay the difference between the net proceeds of sale and what you owe, when the Creditor asks for it. . . .
Defendant subsequently defaulted by failing to make monthly payments when due and Plaintiff repossessed the Vehicle.
A letter dated May 27, 2016 (the "May 27, 2016 letter") was allegedly mailed to Defendant purportedly notifying Defendant of: (1) her right to redeem the Vehicle; and (2) the Vehicle would be sold sometime after June 11, 2016. The May 27, 2016 letter was addressed to: 102-03 63rd Ave Fl 1, Forest Hills, NY 11375-1045, Although the mailing address on the May 27, 2016 letter includes a specific floor number, the Defendant's address in the Contract does not specify a floor number and is stated as: 102-03 63rd Ave, Forest Hills, NY 11375 Co: Queens. The Vehicle was not redeemed by Defendant, and Plaintiff sold the unit at auction on or about July 28, 2016 for $13,500. Plaintiff asserts that Defendant's outstanding balance at the time of default was $30,560.28. Plaintiff claims that Defendant now owes $15,399.11, which allegedly includes expenses incurred by Plaintiff and reductions based on available credits, including the credit to Defendant's account with the proceeds from the sale of the Vehicle. Plaintiff now moves for summary judgment granting Plaintiff the amount allegedly due on the Contract together with such other and further relief as the Court deems proper. In accordance with recitation requirements of rule 2219 of New York's Civil Practice Law and Rules ("CPLR"), the Court considered herein the following: (1) Plaintiff's motion for summary judgment, attached affidavit and corresponding exhibits; (2) Defendant's affidavit in opposition to motion for summary judgment for Plaintiff; and (3) Plaintiff's affirmation in reply. As explained below, Plaintiff's motion for summary judgment is denied. II.Discussion
Summary judgment pursuant to CPLR 3212 provides a mechanism for the prompt disposition, prior to trial, of civil actions which can be decided as a matter of law (see generally Brill v City of New York, 2 NY3d 648, 651 [2004]). Since summary judgment deprives the non-moving parties of their day in court and has res judicata effects, it is therefore only appropriate "if no genuine, triable issue of fact is presented" (see Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]). On a motion for summary judgment, the moving party must make out its prima facie case by submitting evidence in admissible form which establishes its entitlement to judgment as a matter of law (see Marshall v Arias, 12 AD3d 423, 424 [2d Dept 2004]). Upon such a showing, the burden shifts to the non-moving party to present admissible evidence which demonstrates the necessity of a trial as to an issue of fact (see Zolin v Roslyn Synagogue, 154 AD2d 369, 370 [2d Dept 1989]). The non-moving party must be afforded every favorable inference that can be drawn from the evidentiary facts established (see McArdly v M & M Farms of New City, Inc., 90 AD2d 538, 538 [2d Dept 1982]). However, conclusory, unsupported allegations or general denials are insufficient to defeat a motion for summary judgment (see William Iselin & Co., Inc. v Landau, 71 NY2d 420, 427 [1988]; Stern v Stern, 87 AD2d 887, 887 [2d Dept 1982]).
The Contract, in the current matter, is a secured transaction governed by Article 9 of the Uniform Commercial Code ("UCC") because the Contract provides that, in the event of default, Plaintiff may sell the Vehicle and Defendant will be liable for the difference between the net proceeds of the sale and amount owed by Defendant (see Ford Motor Credit Co., Inc. v. Racwell Const., Inc., 24 AD3d 500, 501 [2d Dept 2005] (finding that a lease was a secured transaction governed by UCC article 9 where the lease provided that, in the event of default, the defendant would be liable for the difference between the lease-end purchase price and the proceeds of its sale). When a secured party, such as Plaintiff, elects to repossess and resell, the party must: (1) comply with UCC 9-504 [3]; and (2) prove said compliance (see HSBC Bank USA, Nat Ass'n v. Amagli, 18 Misc 3d 139[A], *1 [App Term 2d & 11th Jud Dists 2008]; Long Island Trust Co. v. Williams, 133 Misc 2d 746, 752 [Civ Ct, NY County 1986] ("All of my research shows that when the secured party elects to repossess and resell, he must comply with UCC Section 9-504(3) and prove that he did.") (citations omitted)).
UCC 9-504 [3] requires that "reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made and shall be sent by the secured party to the debtor." Although UCC 9-504 does not specifically define the term "reasonable," Article 9 of the UCC permits the parties to determine by agreement the standards measuring the fulfillment of the duties of a secured party relating to "reasonable notification" unless the agreement is manifestly unreasonable (see UCC 9-602 [g] (referring to rules concerning the disposition of collateral, including the required reasonable authenticated notification of the disposition to the debtor); UCC 9-603 [a] (providing that parties may agree to standards relating to rules specified in UCC 9-602 that are not manifestly unreasonable); Coxall v. Clover Commercial Corp., 4 Misc 3d 654, 660 [Civ Ct, NY County 2004] ("But the Contract between the Coxalls and Clover Commercial provides that, after repossession, Clover 'can sell the vehicle after 10 days notice', and that 'notice will be reasonable if ... sent ... to your current address ... at least 10 days ... before seller acts on the notice.' Article 9 would permit such an agreement unless it is 'manifestly unreasonable.'") (citations omitted)). According to the Contract, the parties agreed that Plaintiff may satisfy its duty to provide reasonable notification with written notice "at least 10 days before selling the [V]ehicle."
Accordingly, in support of Plaintiff's motion for summary judgment, Plaintiff is required to establish, prima facie, that reasonable notification was provided to Defendant (see HSBC Bank USA, Nat Ass'n v. Amagli, 18 Misc 3d 139[A], *1 [App Term 2d & 11th Jud Dist 2008] ("Plaintiff's moving papers were insufficient to establish prima facie entitlement to recover a deficiency judgment since plaintiff failed to establish that the notice of sale was reasonable and that the vehicle, as collateral, was disposed of in a commercially reasonable manner.") (citing (UCC 9-611 ; UCC 9-610 ; Mack Fin. Corp. v. Knoud, 98 AD2d 713 [2d Dept 1983]; Dime Sav. Bank of NY, F.S.B. v. Harpal, 4 Misc 3d 134 [A], *1 [App Term 2d & 11th Jud Dists 2004])). Plaintiff has not met its burden because Plaintiff submits conclusory allegations that fail to establish that the purported notification, specifically the May 27, 2016 letter, was provided to Defendant.
Plaintiff neither submits proof of actual mailing or proof of a standard practice or procedure designed to ensure that the May 27, 2016 letter was properly addressed and mailed (see Dune Deck Owners Corp. v. JJ & P Associates Corp., 71 AD3d 1075, 1077 [2d Dept 2010]; Elia v. Highland Cent. School Dist., 78 AD3d 1265, 1267 [3d Dept 2010] ("Although there is a presumption that notice has been delivered where there is proof of an office practice and procedure, followed in the regular course of business, which shows that notices were duly addressed and mailed, the affidavit of counsel was woefully insufficient to invoke that presumption") (internal citations omitted)).
CPRL 3212 provides that "a motion for summary judgment shall be supported by affidavit [and] [t]he affidavit shall be by a person having knowledge of the facts" (CPRL 3212 (emphasis added)). Plaintiff submitted an affidavit of a Plaintiff's Supplier Management Administrator (the "Affiant") who simply alleges that "plaintiff mailed notice to defendant dated May 27, 2016 notifying defendant of defendant's right to redeem the subject vehicle or reinstate the contract by curing the default and making the payments past due, plus all associated contractual fees, or in the alternative, notifying the defendant that the vehicle may be sold." However, the Affiant provides no description of the office practices and procedures relating to mailing and there is no indication that the Affiant has personal knowledge that the May 27, 2016 letter was actually mailed.
Moreover, the Affiant does not attest to the date that the May 27, 2016 letter was mailed. Instead, the Affiant merely notes that the May 27, 2016 letter is dated May 27, 2016. Accordingly, even the Affiant's allegations were sufficient to demonstrate that the May 27, 2016 letter was mailed, the allegations fail to establish that the letter was sent in compliance with 10-day notification requirement agreed to in the Contract. There is also no indication that the May 27, 2016 letter was properly addressed or any evidence resolving the difference between the mailing address on the May 27, 2016 letter and the Defendant's address in the Contract. Hence, the affidavit submitted by Plaintiff does not establish the evidentiary foundation required for Plaintiff's prima facie case in this matter. Based on the foregoing, the Court finds that Plaintiff has failed to demonstrate that it is entitled to summary judgment.
III.Conclusion
Accordingly, it is hereby ordered that Plaintiff's motion for summary judgment is denied.
This constitutes the decision and order of the Court. Dated:September 17, 2019 Jamaica, New York