ALLY FINANCIAL INC v. (Appeal No. 2.) (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by denying the motion in part and vacating the award of damages, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action for a deficiency judgment to recover the balance allegedly due on a retail installment contract with respect to a motor vehicle that plaintiff repossessed and sold at an auction. In appeal No. 1, defendant appeals from an order granting plaintiff's motion for summary judgment on the complaint. In appeal No. 2, defendant appeals from a judgment awarding plaintiff damages as provided in the order.

We note at the outset that appeal No. 1 must be dismissed inasmuch as the order granting plaintiff's motion for summary judgment is subsumed in the final judgment (see Wiedenhaupt v. Hogan [Appeal No. 2], 89 A.D.3d 1525, 1526, 932 N.Y.S.2d 751 [4th Dept. 2011]).

With respect to appeal No. 2, we conclude, initially, that Supreme Court properly granted plaintiff's motion insofar as it sought summary judgment on the issue of liability. Plaintiff established on its motion that defendant stopped making the required payments under the contract and, in opposition, defendant did not dispute that she stopped making those payments (see generally Ford Motor Credit Co., Inc. v. Racwell Constr., Inc., 24 A.D.3d 500, 501, 808 N.Y.S.2d 294 [2d Dept. 2005]).

We agree, however, with defendant that the court should have denied plaintiff's motion insofar as it sought summary judgment on the amount of damages. Plaintiff did not meet its initial burden of establishing the amount of the alleged deficiency as a matter of law (cf. Central Natl. Bank, Canajoharie v. Butler [Appeal No. 2], 294 A.D.2d 881, 882, 741 N.Y.S.2d 643 [4th Dept. 2002]; see generally Ford Motor Credit Co. v. Sawdey, 286 A.D.2d 972, 972, 730 N.Y.S.2d 611 [4th Dept. 2001]; Sisters of Charity Hosp. of Buffalo v. Riley, 231 A.D.2d 272, 282, 661 N.Y.S.2d 352 [4th Dept. 1997]). We note in particular that plaintiff failed to provide evidence of defendant's payment history, and failed to establish whether it applied certain applicable credits, including an unearned credit service charge pursuant to Personal Property Law §§ 305 and 315.

Moreover, plaintiff's moving papers failed to establish that the vehicle was sold in a commercially reasonable manner (see Ford Motor Credit Co., Inc., 24 A.D.3d at 501, 808 N.Y.S.2d 294). A “secured party seeking a deficiency judgment from the debtor after sale of the collateral bears the burden of showing that the sale was made in a commercially reasonable manner” (GMAC v. Jones, 89 A.D.3d 985, 986, 933 N.Y.S.2d 354 [2d Dept. 2011] [internal quotation marks omitted]; see generally UCC 9-627 [b]). We conclude that, “[h]aving failed to set forth any of the facts and circumstances surrounding the sale, plaintiff failed to satisfy a prerequisite to obtaining a deficiency judgment and is not entitled to summary judgment” with respect to damages (Ford Motor Credit Co. v. Hernandez, 210 A.D.2d 656, 657, 619 N.Y.S.2d 381 [3d Dept. 1994]; see Ford Motor Credit Co., Inc., 24 A.D.3d at 501, 808 N.Y.S.2d 294; see also Mack Fin. Corp. v. Knoud, 98 A.D.2d 713, 714, 469 N.Y.S.2d 116 [2d Dept. 1983]). Thus, we modify the order accordingly.