NISSAN MOTOR ACCEPTANCE CO LLC v. ONIMOLE (2022)

Plaintiff, Nissan Motor Acceptance Co. LLC, brings this special proceeding under CPLR article 71 for an order seizing an automobile in the possession of defendant Michael I. Onimole. Plaintiff alleges in its petition that it is entitled to an order of seizure because it holds a security interest in the automobile and because Onimole assertedly failed to make his car payments. Onimole has not opposed the petition. This court concludes that the petition must be denied, and the proceeding dismissed, because plaintiff's petition papers do not show, even prima facie, that it is entitled to an order of seizure.

CPLR 7102 (c) provides that an “application for an order of seizure shall be supported by an affidavit which shall clearly identify the chattel to be seized and shall state ․ that the plaintiff is entitled to possession by virtue of facts set forth.” A court may grant an order directing seizure only upon a finding, based on the affidavit, that “it is probable the plaintiff will succeed on the merits” and that “the facts are as stated in the affidavit.” (CPLR 7102 [d] [1].)

Here, Plaintiff relies on an affidavit from one of its employees. (See NYSCEF No. 3.) The affidavit attaches as exhibits copies of the underlying sale contract, plaintiff's recorded lien securing plaintiff's interest in the car, and plaintiff's undertaking (with proof that the undertaking is sufficient). (See NYSCEF Nos. 4-7.) The affidavit is not, however, accompanied by documentary proof of defendant's (putative) failure to make his required car payments. On that point, plaintiff offers only the affidavit's statement that “on or about 12/06/2021 the Defendant defaulted under the terms of the Contract by failing to make the payments due under the Contract.” (NYSCEF No. 3 at ¶ 3 [d].) That statement, unsupported by documentary proof, “lacks any probative value.” (Dempsey v Intercontinental Hotel Corp., 126 AD2d 477, 479 [1st Dept 1987]; accord Wells Fargo Bank, NA v Oziel, 196 AD3d 618, 621 [2d Dept 2021] [holding that an affiant's factual representation “based upon her review of unidentified and unproduced business records ․ constituted inadmissible hearsay and lacked probative value”].)

As a result, the affidavit/exhibits introduced by plaintiff do not establish the necessary probability of success on the merits of plaintiff's claim of entitlement to an order of seizure. (See CPLR 7102 [d] [1].) Given plaintiff's choice to seek summary disposition of that claim by means of a special proceeding (rather than through bringing a motion in a broader plenary action), the appropriate disposition in these circumstances is to deny the petition outright, rather than to afford plaintiff another opportunity to submit the evidence needed to support its seizure claim properly.

Accordingly, it is

ORDERED that plaintiff's petition under CPLR article 71 for an order of seizure is denied, and the proceeding is dismissed; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on defendant by certified mail, return receipt requested, directed to defendant's last-known address; and on the office of the County Clerk, which shall enter judgment accordingly.

Gerald Lebovits, J.