Summary
holding that "[p]laintiff's decision to sue on the note while retaining the collateral was within its rights" under UCC Article 9 and plaintiff was not required to "play the market" by selling nonperishable collateral during the litigation on the unpaid debt
Summary of this case from KLS Diversified Master Fund, L.P. v. McDevittOpinion
February 26, 1998
Appeal from the Supreme Court, New York County (Lewis Friedman, J.).
Plaintiff's decision to sue on the note while retaining the collateral was within its rights under UCC 9-501 (1) and was commercially reasonable ( see, First Intl. Bank v. Blankstein Son, 59 N.Y.2d 436, 447; Chemical Bank v. Alco Gems Corp., 151 A.D.2d 366, 368).
Defendants have presented no evidence suggesting either negligence by plaintiff in the preservation of the collateral or of a decline in value. Plaintiff was not required to "`play the market'" by selling nonperishable collateral during the course of litigation (59 N.Y.2d supra, at 447).
In light of defendants' admitted default under several terms of the security agreement, plaintiff's acceleration of the amount due, explicitly authorized by the agreement, was in good faith ( see, UCC-1 208).
Finally, defendants' mere hope that they might be able to uncover some evidence during the discovery process is insufficient to defeat summary judgment ( see, Moukarzel v. Montefiore Med. Ctr., 235 A.D.2d 239, 240).
We have reviewed defendants-appellants' remaining contentions and find them to be without merit.
Concur — Milonas, J. P., Williams, Mazzarelli and Andrias, JJ.