Babcock v Horne

[*1] Babcock v Horne 2012 NY Slip Op 51069(U) Decided on June 11, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2011-433 OR C.

Krista Babcock and KENNY BABCOCK, Appellants,

against

James W. Horne, Respondent.

Appeal from a judgment of the City Court of Newburgh, Orange County (Peter M. Kulkin, J.), entered September 22, 2010. The judgment, after an inquest, dismissed the action.

ORDERED that the judgment is modified by providing that plaintiff Krista Babcock is awarded the principal sum of $2,000; as so modified, the judgment is affirmed, without costs.

Plaintiffs commenced this small claims action to recover the principal sum of $5,000 based on a loan agreement. Defendant defaulted in appearing in the action. At the inquest, plaintiff Krista Babcock testified that she had cosigned an automobile loan instrument merely to enable defendant to obtain a loan to purchase an automobile from a third party. She testified further that defendant had defaulted in making the payments due pursuant to the loan instrument and that she had paid the lending bank $2,000 to settle the claim. After the inquest, the City Court dismissed the action.

Upon a review of the record, we find that substantial justice was not done between the parties according to the rules and principles of substantive law (see UCCA 1804, 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). Plaintiff Krista Babcock established that she had paid $2,000 to the lending bank to pay off defendant's automobile loan. As Krista Babcock was an accommodation party, she was entitled to the rights of the creditor upon paying off the loan (see Executive Bank of Ft. Lauderdale v Tighe, 66 AD2d [*2]70, 74 [1978]; see also UCC 3-415 [1]; Long Is. Trust Co. v Merz, 20 Misc 2d 342 [1959]). Consequently, defendant is liable to plaintiff Krista Babcock for the amount she paid to the bank (see UCC 3-415 [5]; Brown v Arcuri, 43 AD2d 993 [1974]).

Accordingly, the judgment is modified by providing that plaintiff Krista Babcock is awarded the principal sum of $2,000.
Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: June 11, 2012