Ford Motor Credit Co. LLC v Smith
Annotate this CaseDecided on June 27, 2017
Civil Court of the City of New York, Kings County
Ford Motor Credit Company LLC, Plaintiff,
against
Naomie Smith, Defendant.
CV-072907-15/KI
Michael K. Johnson, Esq. on behalf of Rubin & Rothman, LLC, the attorneys of record for Plaintiff Ford Motor Credit Company.
Divya Subrahmanyam, Esq. on behalf of CAMBA Legal Services, Inc., the attorney of record for Defendant Naomie Smith.
Cenceria P. Edwards, J.
Ford Motor Credit Company LLC ("Plaintiff"), filed a notice of motion, pursuant to CPLR 3212, for an Order granting summary judgment against Naomie Smith ("Defendant") in the amount of $10,079.05, plus costs and disbursements for breach of a New York Motor Vehicle Lease Agreement. Defendant in opposition to Plaintiff's motion argued, inter alia, that Defendant was fraudulently induced by her ex-boyfriend into signing the lease agreement; Plaintiff failed to provide Defendant the necessary notice of sale pursuant to NY Pers. Prop. §340; and Plaintiff's sale of the subject vehicle was not commercially reasonable. In reply, Plaintiff asserts, inter alia, that it disposed of the vehicle in a commercially reasonable manner in compliance with Article 9 of the Uniform Commercial Code.
On or about December 11, 2015, Plaintiff, the financing company for the subject vehicle, commenced this action against Defendant for breach of the lease agreement when she failed to make the regular monthly rental payments in the amount of $299.77 per month as required by the agreement.[FN1] Premier Ford, Inc., " lessor" hereinafter, of the subject vehicle and Defendant entered into a 24 month lease agreement for a new 2014 Ford Focus for Defendant's personal use on or about August 20, 2014. Approximately one year later, on or about August 26, 2015, Plaintiff repossessed the subject vehicle due to Defendant's default. Prior to the repossession, Plaintiff mailed to Defendant a Notice of Default and a Right of Reinstatement,[FN2] a Notice of [*2]Default and a Right to Cure [FN3] and a notice of intended disposition. The notice of intended disposition was mailed to Defendant at 1964 "Nostrend" Ave, Brooklyn, NY 11210 by certified mail on or about August 28, 2015. On or about September 16, 2015, Plaintiff sold the vehicle at a private auction after Defendant failed to redeem or reinstate the vehicle.
The Courts have long recognized that "summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and [that] it should only be employed when there is no doubt as to the absence of triable issues of material fact" (Bonaventura v. Galpin, 119 AD3d 625[2d Dept. 2014], citing Andre v. Pomeroy, 35 NY2d 361, 364[1974]). Additionally, a party opposing a motion for summary judgment is entitled to every favorable inference that may be drawn from pleadings, affidavits and competing contentions of the parties (see Nicklas v. Tedlen Realty Corp., 305 AD2d 385, 386 [2d Dept. 2003]; see also Akseizer v. Kramer, 265 AD2d 356, 356[2d Dept. 1999]) and once a moving party has met its burden, the opposing party must tender evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which would require a trial or tender an acceptable excuse for his failure to do so (see, Greenberg v Coronet Prop. Co., 167 AD2d 291[1st Dept.1990]).
In support of its motion, Plaintiff proffered, inter alia, an affidavit from its Account Services Representative, Lorrie Rowe,[FN4] a copy of the New York Motor Vehicle Lease Agreement; and a copy of the certified mailing receipt.[FN5] It is well-settled that an employee of a business may introduce into evidence documents created by another entity under the business records exception if the employee can establish personal knowledge of the entity's business practices and procedures or show that the employee's business routinely relies upon those records in the performance of its own business (CPLR 4518 [a];People v DiSalvo, 284 AD2d 547 [2d Dept 2001]). Here, Ms. Rowe attests that "all documents and records annexed to and discussed in her affidavit were created and maintained by the Plaintiff in the ordinary course of its business and the entries made therein were made at or about the time of the events with the exception of documents received by Plaintiff in the ordinary course of its business."[FN6] Ms. Rowe further attests that Plaintiff is sufficiently familiar with and regularly relies upon same, as they are received from entities with which Plaintiff regularly transacts business in its day to day operations.[FN7] Ms. Rowe asserts that the outstanding balance owed on the lease agreement at the time of Defendant's default was $24,330.61 and that Plaintiff mailed all requisite notices to Defendant concerning her default and the potential sale of the subject vehicle. On or about August 26, 2015, Plaintiff repossessed the subject vehicle and sold it at a private auction after Defendant failed to redeem or reinstate the vehicle.[FN8] Ms. Rowe attests that the vehicle was sold for $15,100.00 in a commercially reasonable manner by an auctioneer which Plaintiff used on a regular, ongoing basis.[FN9] After applying a credit in the amount of $15,100.00 from the liquidation of the collateral and added late charges in the amount of $155.94, a repossession fee in the amount of $620.00 [*3]and the cost of reconditioning the appearance of the vehicle in the amount of $72.50, Plaintiff calculated the remaining balance Defendant owed in the amount of $10,079.05.[FN10]
The Court will not address the merits of Defendant's fraud claims against a non party.
The Court finds Defendant raises a triable issue of fact as to Plaintiff's entitlement to recover the lost lease profits since Plaintiff failed to provide ten days written notice of sale to Defendant pursuant to the Article 9-A Motor Vehicle Retail Leasing Act (NY CLS Pers P §340, 341).
§340 (2) of Article 9-A Motor Vehicle Retail Leasing Act provides:
2. If an agreement is terminated early and there is no option to purchase the vehicle or the lessee does not exercise any option he or she may have to purchase the vehicle, or if the lessee's liability at the scheduled end of the lease term is based upon the estimated residual value of the vehicle and the lessee does not exercise any option he or she may have to purchase the vehicle, the holder shall give the lessee at least ten days written notice of its intention to sell the motor vehicle. A notice of intention to sell the vehicle need not be given if the holder and lessee have agreed in writing to the amount of the lessee's liability under the retail lease agreement after the lessee returns the vehicle to the holder or the lessee has fully satisfied his or her obligations under the agreement. A holder gives notice to the lessee under this subdivision when he or she delivers the notice to the lessee or mails the notice to him or her at his or her last known address.Defendant asserts she never received the Notice of Sale mailed to her by certified mail on August 28, 2015. Plaintiff misspelled Defendant's street address as "Nostrend" Ave. On the certified mail receipt which was returned to Plaintiff on September 4, 2015 as "undeliverable as addressed" pursuant to the USPS tracking data printout [FN11] (Matter of FIA Card Services., N.A. v Hamilton, 78 AD3d 1180 2d Dept. 2010]). Based on the foregoing, the Court finds that an issue of fact exists regarding Plaintiff's failure to provide Defendant with the notice of sale pursuant to NY CLS Pers P §340 and if Plaintiff's failure deprived Defendant of her right to protect the vehicle's "realized value"and Plaintiff's entitlement to recover lost lease profits.
The subject motor vehicle retail lease at issue is a consumer transaction that is governed by the Motor Vehicle Retail Leasing Act and Plaintiff's entitlement to recover lost lease profits is contingent upon proof of service of a proper notice of sale as set forth in NY CLS Pers P §340 (2)(V.W. Credit, Inc. V Alexandrescu, 13 Misc 3d 1207(A)[NY Civ Ct. 2006].
Plaintiff's motion for summary judgment is denied. Based on the forgoing, the Court did not address the merits of the parties' remaining contentions.
Conclusion
Accordingly, it is
ORDERED, that Plaintiff's motion for summary judgment is denied;
This constitutes the Decision and Order of the Court.
Dated: June 27, 2017
HON. CENCERIA P. EDWARDS Footnotes
Footnote 1:CAB East LLC is the holder of the lease and appointed Plaintiff to administer, enforce and defend the lease agreement.
Footnote 2:Plaintiff mailed the Notice of Default and a Right of Reinstatement, annexed as Exhibit E to Plaintiff's moving papers, on or about January 23, 2015.
Footnote 3:Plaintiff mailed the Notice of Default and a Right to Cure, annexed as Exhibit E to Plaintiff's moving papers, on or about July 8, 2015.
Footnote 4:Annexed to Plaintiff's moving papers is a copy of Lorrie Rowe's affidavit.
Footnote 5:Annexed as Exhibit F to Plaintiff's moving papers is a copy of the handwritten certified mail receipt.
Footnote 6:Rowe Aff. ¶ 3.
Footnote 7:Rowe Aff. ¶ 3.
Footnote 8:Rowe Aff. ¶ ¶ 7- 11
Footnote 9:Rowe Aff. ¶ 10.
Footnote 10:Rowe Aff. ¶ ¶ 10-11.
Footnote 11:Defendant's opposition papers ¶ ¶ 7- 11.
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