Opinion
3215/05.
Decided February 27, 2006.
The plaintiff moves, pursuant to CPLR 3212, for an order granting summary judgment in favor of the plaintiff and against the defendant. The defendant cross-moves for summary judgment.
In December of 2004, the plaintiff commenced this action against the defendant. The plaintiff's complaint sought $2,967.44 dollars, based upon the defendant's default pursuant to a car leasing agreement. In February of 2005, the defendant answered the plaintiff's complaint and denied the central allegations of the complaint and five (5) affirmative defenses.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( see, Alvarez v. Prospect Hospital, 68 NY2d 320; Winegard v. New York University Medical Center, 64 NY2d 851). Upon the examination of all papers, the Court finds the plaintiff has met his burden. Once the moving party meets his burden, the burden then shifts to the non-moving party to allege such evidentiary facts that raise a genuine and material controversy as to the issue(s) before the Court. Where the opposing party fails to meet his burden, and the Court finds no triable issues, the motion will be granted ( see, Iandoli v. Lange, 35 AD2d 793, 315 NYS2d 752 [1st Dept 1970]). Where the Court determines that a triable issue of fact exists, denial of the motion is the proper course of action ( see, Moskowitz v. Garlock, 23 AD2d 943, 259 NYS2d 1003 [3d Dept 1965]).
In support of its motion, the plaintiff submits, inter alia, an affidavit of the President of the plaintiff, a copy of the Motor Vehicle Lease Agreement, billing statements, Termination Letter, Lease Vehicle Condition Repair and Report, and a body shop repair estimate. The Court finds that the plaintiff has met his burden. The plaintiff has established that the defendant was in breach of the lease in the amount of $2,547.87 (representing $12.00 to replace the owner's manual; $250.00 as a disposition fee; $1,210.93 for excessive wear and tear; $1,499.94 in excess mileage of 8,333 billed at a rate of 18 per mile as provided for in the lease agreement and a $500.00 credit for a pre-existing condition). Although the lease provides for attorney's fees, the plaintiff has not provided the Court with an affirmation of counsel, setting forth the reasonableness of the fees. Thus, the plaintiff has established a prima facie case as to entitlement to attorney's fees. However, there is an issue of fact as to the amount of attorney's fees.
In opposition, the defendant submits an affirmation of counsel, an addendum to the lease and a copy of Personal Property Law § 343. The defendant's counsel argues that there was an addendum to the lease and thus there was no excess mileage incurred, nor a disposition fee due. Secondly, the defendant's counsel argues that the plaintiff failed to comply with the Notice provisions of the New York Motor Vehicle Retail Leasing Act and thus cannot collect wear and damage charges. The Court notes that an affirmation of counsel has no probative value and is insufficient to establish an issue of fact ( see, Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923). This defect was remedied in the defendant's reply papers by submitting an affidavit of the defendant.
The defendant claims that the agreement between the parties regarding the amount of miles per year was for 18,000. However, the lease agreement provided for only 12,000 miles per year. The defendant further claims that when she realized the error she contacted a "Greg Rubin" at Shari Lyn Leasing. Mr. Rubin allegedly drafted an Addendum to the lease, increasing the mileage allowance to 18,000 miles per year. A copy of the Addendum was attached to the defendant's cross-motion, as Exhibit "A". The plaintiff's attorney, in reply, points out that on the day the lease agreement was signed, the lessor, Shari Lyn Leasing Corp., assigned the lease to Sovereign Bank. The Addendum was signed between the original lessor, Shari Lyn Leasing Corp., and the defendant three (3) days after the lessor's assignment to Sovereign Bank. The plaintiff argues that it cannot be bound by an alleged Addendum that it did not consent to. Clearly, an issue of fact with regard to the entitlement of excessive miles and disposition fee is present in this case.
Personal Property Law § 343(2)(a) does require the lessor to notify the leasee of certain rights with regard to excess damage prior to the scheduled termination date. The notice must contain the following language in at least ten-point bold type:
"YOUR LEASE AGREEMENT ALLOWS (HOLDER) TO ASSESS A CHARGE FOR EXCESS WEAR AND DAMAGE TO THE VEHICLE. YOU SHOULD OBTAIN YOUR OWN EVIDENCE OF THE CURRENT CONDITION OF THE VEHICLE NOT MORE THAN TWENTY (20) DAYS PRIOR TO THE SCHEDULED TERMINATION OF YOUR LEASE. YOU ALSO WILL HAVE THE RIGHT TO SUBMIT DISPUTES TO THE ALTERNATE ARBITRATION MECHANISM ESTABLISHED UNDER REGULATIONS PROMULGATED BY THE NEW YORK STATE ATTORNEY GENERAL."
Personal Property Law § 343(3)(b)(ii) requires that the following statements be printed in at least ten-point bold type on any itemized bill:
"You are being asked to pay an amount claimed for excess wear and damage to the vehicle. If you wish to contest this amount, you must obtain an itemized appraisal from an appraiser licensed by the New York State Department of Motor Vehicles, and mail or deliver a copy of such appraisal to (NAME AND ADDRESS OF HOLDER) within the greater of fourteen business days (NAME OF HOLDER) has sent, or ten business days of receipt of this bill and (NAME OF HOLDER'S) itemized appraisal. If you fail to do so, you will forfeit your right to contest in arbitration any actual repair costs incurred by the (HOLDER) for excess wear and damage; however, you do not forfeit your right to contest the existence of any item or whether the wear is excessive in nature."
The Personal Property Law also requires the lease holder to provide the leasee with notice of certain rights when furnishing an itemized appraisal report in connection with an excess wear and tear charge. An itemized appraisal report must contain the following language:
"ALL ITEMS OF DAMAGE FOR WHICH A CHARGE FOR EXCESSIVE WEAR OR DAMAGE WILL BE CLAIMED BY THE HOLDER MUST BE NOTED IN THIS APPRAISAL. IF YOU DISPUTE THE EXISTENCE OR NATURE OF ANY ITEM OF DAMAGE IDENTIFIED IN THIS NOTICE, YOU MAY SUBMIT THE DISPUTE TO THE ALTERNATE ARBITRATION MECHANISM ESTABLISHED UNDER REGULATIONS PROMULGATED BY THE NEW YORK STATE ATTORNEY GENERAL."
The itemized appraisal report attached to the plaintiff's moving papers did not contain the above language.
In view of the foregoing, the defendant has raised an issue of fact with regard to the plaintiff's claim for excessive wear and tear.
Notwithstanding the above, the Court notes that the Personal Property Law does not state that if the above language is missing from the termination letter or itemized appraisal or itemized bill, that lessor has forfeited its contractual rights to charge, receive or collect any charge for excessive wear and damage to the vehicle from the lessee ( cf. Personal Property Law § 343[a][ii]). In fact, pursuant to Personal Property Law § 346, entitled "Penalties", it appears that the penalty for violating Article 9-A of the Personal Property Law is an award to the lessee of $100.00 dollars civil penalty, actual damages and reasonable attorney's fees.
Accordingly, the parties' respective motions for summary judgment are hereby denied as there are numerous issues of fact requiring a plenary trial.
So ordered.