American Furniture, LLC v ACG Credit Co., LLC

American Furniture, LLC v ACG Credit Co., LLC 2008 NY Slip Op 03507 [50 AD3d 494] April 22, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 18, 2008

American Furniture, LLC, et al., Appellants,
v
ACG Credit Company, LLC, et al., Respondents.

—[*1] Patterson Belknap Webb & Tyler LLP, New York (John D. Winter of counsel), for appellants.

Hahn & Hessen LLP, New York (Zachary G. Newman of counsel), for respondents.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered November 3, 2006, which, to the extent appealed from as limited by the briefs, awarded defendant ACG Credit attorney fees and denied plaintiffs' motion for a hearing as to whether the sale of collateral was commercially reasonable, and supplemental judgment, same court and Justice, entered February 1, 2007, awarding defendants the principal sum of $460,000 in postjudgment attorney fees, unanimously affirmed, with one bill of costs.

The court correctly interpreted the expansive fee provisions in the note and guaranty in awarding attorney fees with respect to certain New Hampshire litigation and postjudgment matters, inter alia, and properly applied the governing rule and reviewed the evidence in awarding reasonable fees. Plaintiffs failed to raise an issue of fact regarding collusion, fraud or self-dealing in opposition to defendants' showing that their disposition of the collateral had been performed in a commercially reasonable manner, and no hearing was warranted on the issue (see Golden City Commercial Bank v Hawk Props. Corp., 240 AD2d 218, 219 [1997]). Under the circumstances, while the sale price of the collateral differed from that in an appraisal several years earlier, this did not require further scrutiny (see Frank Buttermark Plumbing & Heating Corp. v Sagarese, 119 AD2d 540 [1986], lv denied 68 NY2d 607 [1986]). Concur—Lippman, P.J., Saxe, Gonzalez and Nardelli, JJ.