CHRYSLER CREDIT CORPORATION v. The New York City Parking Violations Bureau, et al., Defendants-Appellants.

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Supreme Court, Appellate Division, First Department, New York.

CHRYSLER CREDIT CORPORATION, Plaintiff-Respondent, v. Vitaly SIMCHUK, et al., Defendants, The New York City Parking Violations Bureau, et al., Defendants-Appellants.

Decided: February 18, 1999

ROSENBERGER, J.P., NARDELLI, TOM and ANDRIAS, JJ. Michael L. Saltzman, for plaintiff-respondent. Cheryl Payer, for defendants-appellants.

Judgment, Supreme Court, New York County (Jane Solomon, J.), entered September 17, 1997, insofar as appealed from as limited by the municipal defendants' briefs, awarding plaintiff damages, and bringing up for review an order of same court and Justice, entered June 26, 1997, which granted plaintiff's motion for summary judgment on its cause of action against the municipal defendants and defendant Marshal to recover the proceeds of the sale of a vehicle in which plaintiff had a superior security, unanimously affirmed, without costs.

 We agree with the IAS court that the municipal defendants are liable for the full amount of the sale proceeds.   It being undisputed that plaintiff, as a secured creditor, had a superior interest in the subject vehicle to municipal defendants, whose judgment lien arose out of unpaid parking violations, plaintiff was entitled to the satisfaction of its lien prior to municipal defendants' satisfaction of its judgment, and the sale of the vehicle by municipal defendants was improper (see, Ford Motor Credit Co. v. Shapiro, 26 UCC Rep Serv 1317, 1979 WL 30082;  Ford Motor Co. v. City of New York, 14 UCC Rep 211, 1974 WL 21734).   We reject the municipal defendants' argument that at worst they should be held liable only for those portions of the proceeds they used to satisfy their judgment, but not for those portions they incorrectly returned to the judgment debtor (see, Bank of Danville v. Farmers Natl. Bank, 602 S.W.2d 160 [Sup. Ct. Ky.];   but see, Chadron Energy Corp. v. First Natl. Bank, 236 Neb. 173, 459 N.W.2d 718 [Sup. Ct. Neb.] ).  We have considered defendants' other arguments and find them to be unavailing.


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