M&T Bank v Cabrera
Annotate this CaseDecided on September 7, 2023
Supreme Court, New York County
M&T Bank, Plaintiff,
against
Fianny Cabrera, Defendant.
Index No. 152687/2022
Rupp Pfalzgraf LLC, Buffalo, NY (Miranda L. Jakubec of counsel), for plaintiff.
No appearance for defendant.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 were read on this motion for SUMMARY JUDGMENT.
This is an action on a retail-sales-installment contract for an automobile, brought by plaintiff, M&T Bank, against defendant, Fianny Cabrera. Defendant defaulted on her car payments, which led plaintiff to repossess the car and resell it at auction. Plaintiff has brought this action to recover the difference between defendant's outstanding balance on the car and the amount received by plaintiff for the car at auction (after covering plaintiff's costs to repossess and resell the car). Plaintiff now moves without opposition under CPLR 3212 for summary judgment. The motion is granted in part and denied in part.
Although plaintiff's papers do not identify the basis for its claim, Personal Property Law § 315 permits the holder of a motor-vehicle retail installment contract (here, plaintiff) to recover any deficiency following repossession-and-resale under Uniform Commercial Code (UCC) § 9-610. As relevant here, the amount of that deficiency obligation is the difference between (i) the outstanding balance and (ii) the resale amount less repossession/resale expenses. (See UCC 9-615 [a] [1], [d] [2].) The amount of that deficiency is then statutorily reduced by the amount of a prepayment-refund-credit that is deemed to apply. (See Personal Property Law § 315.)
Plaintiff has established prima facie, through the affidavit of an assistant vice president (NYSCEF No. 26) and the accompanying documents (NYSCEF Nos. 27-28), that the amount of defendant's remaining deficiency is $9,817.57. (See NYSCEF No. 26 at ¶¶ 12-15.) Defendant has not raised a material dispute of fact. Plaintiff is therefore entitled to summary judgment for [*2]that amount, plus interest.
Plaintiff also seeks $1,154.04 in late fees (see id. at ¶ 17) and $3,812.50 in attorney fees (see NYSCEF No. 22 at ¶ 26). But plaintiff has not identified the statutory or contractual basis for assessing late fees on top of the deficiency amount, nor how those fees were calculated. And although plaintiff's counsel states that plaintiff's "entitlement to attorneys' fees arises out of the terms of the Contract" (id.), this court's review of the contract did not identify a provision making defendant liable for attorney fees. (See generally NYSCEF No. 2.) At most, the contract includes a notice to any co-signer that the total payment amount listed at the top of the contract "does not include Finance Charges resulting from delinquency, late charges, repossession or foreclosure costs, court costs or attorney's fees, or other charges that are stated in the contract."[FN1] (Id. at 3.) This reference to attorney fees, absent an operative term of the contract stating in so many words that defendant is responsible for those fees, is not sufficient.
Accordingly, it is
ORDERED that plaintiff's summary-judgment motion is granted in part and denied in part as set forth above, and plaintiff is awarded a judgment against defendant of $9,817.57, with interest running from June 27, 2019 (the date plaintiff provided defendant with an itemization of the post-resale deficiency), plus costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that plaintiff shall serve a copy of this order with notice of its entry on defendant and on the office of the County Clerk, which shall enter judgment accordingly.
Dated: September 7, 2023
Hon. Gerald Lebovits
J.S.C. Footnotes
Footnote 1:Defendant did not have a co-signer on this contract. (See NYSCEF No. 2 at 2, 3 [signature blocks].)
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
