Dime Sav. Bank of N.Y., F.S.B. v Harpal

[*1] Dime Sav. Bank of N.Y., F.S.B. v Harpal 2004 NY Slip Op 50758(U) Decided on July 6, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 6, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-1333 Q C

THE DIME SAVINGS BANK OF NEW YORK, F.S.B., Appellant,

against

JAURA HARPAL, Defendant, -and- MANPREET KAUR, Respondent. - JAURA HARPAL and MANPREET KAUR, Third-Party Plaintiffs, MIDLAND AUTO MALL INC., Third-Party Defendant.

Appeal by plaintiff from an order of the Civil Court, Queens County (S. Gottlieb, J.), entered June 5, 2003, which denied its motion for summary judgment as against defendant Manpreet Kaur.

Order unanimously affirmed without costs.

Plaintiff, as assignee, commenced this action to recover upon an unpaid motor vehicle [*2]retail instalment sales contract. Defendant Manpreet Kaur admitted that she stopped making payments, but she claimed that the vehicle was defective and was returned to the used car dealer who agreed to make the monthly payments upon the loan. After the car was repossessed at plaintiff's behest, it was sold at what plaintiff claims was a public auction.

Although plaintiff moved for summary judgment to recovery a deficiency judgment against Kaur, plaintiff's moving papers did not set forth sufficient evidence in admissible form to establish that the collateral was disposed of in a commercially reasonable manner (see UCC 9-610). It is well settled that "[a] secured party of the collateral bears the burden of showing that the sale was made in a 'commercially reasonable' manner" (Mack Fin. Corp. v Knoud, 98 AD2d 713, 714 [1983]; see also Associates Commercial Corp. v Liberty Truck Sales & Leasing, 286 AD2d 311, 312 [2001]; Ford Motor Credit Co. v Hernandez, 210 AD2d 656 [1994]). Consequently, plaintiff's motion for summary judgment was properly denied because plaintiff failed
to satisfy its burden of demonstrating its entitlement to summary judgment (see Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Associates Commercial Corp., 286 AD2d at 312-313; Ford Motor Credit Co., 210 AD2d 656; Mack Fin. Corp., 98 AD2d at 714).
Decision Date: July 06, 2004