IN THIS DEFICIENCY JUDGMENT ACTION, THE PLAINTIFF DID NOT PRESENT SUFFICIENT PROOF OF THE AMOUNT OWED BY THE DEFENDANT OR THE REASONABLENESS OF THE SALE OF THE COLLATERAL (FOURTH DEPT).

PDF Friendly VersionPrint Friendly Version

The Fourth Department, vacating the damages award in this action on a motor vehicle retail installment contract, determined the plaintiff did not present evidence sufficient to determine the correct amount of the deficiency judgment or the reasonableness of the sale of the collateral:

… [T]he 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 … . 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 … . 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” ( … 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 … . Ally Fin. Inc. v Jonathan, 2020 NY Slip Op 05630, Fourth Dept 10-9-20