Opinion
Submitted June 11, 2001.
August 6, 2001.
In an action, inter alia, to recover on a guarantee, the defendant Richard Toporek appeals from so much of an order of the Supreme Court, Nassau County (Austin, J.), dated September 18, 2000, as granted that branch of the plaintiff's motion which was for summary judgment for leave to enter a deficiency judgment against him in the principal sum of $261,750.61.
Richard A. Kraslow, P.C., Melville, N.Y., for appellant.
Ochs Goldberg, LLP, New York, N.Y. (Mitchell D. Goldberg of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, P.J., WILLIAM D. FRIEDMANN, ANITA R. FLORIO, SANDRA J. FEUERSTEIN, JJ.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion which was for summary judgment against the appellant is denied.
The plaintiff, Associates Commercial Corporation (hereinafter ACC), entered into a security agreement with the defendant Liberty Truck Sales Leasing, Inc. (hereinafter Liberty), in connection with ACC's agreement to advance money to Liberty to acquire trucks, that Liberty would then sell or lease to third parties. The collateral included all present and future vehicles in Liberty's inventory. The appellant, Richard Toporek, as well as the defendant Philip Capodiferro, signed personal guarantees on behalf of Liberty. Following Liberty's default, ACC repossessed and sold various trucks included within the collateral, and thereafter commenced this action. The Supreme Court granted ACC's motion for summary judgment against the appellant jointly and severally with the other defendants, finding that ACC's submissions demonstrated its right to enter a deficiency judgment, and that the conclusory assertions contained in the opposition papers failed to reveal a triable issue of fact. We reverse.
"[A] secured party seeking a deficiency judgment from the debtor after sale of the collateral bears the burden of showing that the sale was made in a `commercially reasonable' manner (see, Uniform Commercial Code, — 9-504; Central Budget Corp. v. Garrett, 48 A.D.2d 825)" (Mack Fin. Corp. v. Knoud, 98 A.D.2d 713). A guarantor is also entitled to interpose this as a defense (see, Chemical Bank v. Gem Trak, 232 A.D.2d 355; Marine Midland Bank v. CMR Indus., 159 A.D.2d 94). The proof submitted by ACC in support of its motion failed to demonstrate that the collateral was sold in a commercially-reasonable manner. The proof also failed to account for the sale of four of the trucks which were included by ACC as part of the collateral. Thus, as a matter of law, ACC failed to meet its burden of showing that all of the collateral seized was disposed of in a commercially-reasonable manner in accordance with UCC — 9-504(3) (see generally, New Jersey Bank, Natl. Assn. v. Varano, 120 A.D.2d 505; Kohler v. Ford Motor Credit Co., 93 A.D.2d 205; National Bank of Delaware County v. Gregory, 85 A.D.2d 839; cf., Transamerica Commercial Fin. Corp. v. Matthews of Scotia, 178 A.D.2d 691). Because ACC failed to meet its initial burden of producing evidentiary proof in admissible form establishing its right to judgment against the appellant in the amount demanded, as a matter of law, summary judgment should have been denied as to the appellant irrespective of the inadequacies in the opposition papers (see, Zuckerman v. City of New York, 49 N.Y.2d 557).
BRACKEN, P.J., FRIEDMANN, FLORIO and FEUERSTEIN, JJ., concur.