Appeal from an order of the District Court of Nassau County, First District (Margaret C. Reilly, J.), entered July 12, 2005, and from a judgment of the same court entered on July 25, 2005. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion to strike the complaint or to preclude plaintiff from presenting any evidence. The judgment, entered upon the order of July 12, 2005, awarded plaintiff the principal sum of $5,141.13.

Appeal from order dismissed.

Judgment reversed without costs, order, insofar as it granted plaintiff's motion for summary judgment, vacated and plaintiff's motion for summary judgment denied.

At the outset, we note that the appeal from the order entered July 12, 2005 is dismissed since the right of direct appeal therefrom terminated with entry of the judgment (Matter of Aho, 39 NY2d 241, 248 [1976]).

Plaintiff commenced this action to recover a deficiency judgment based upon defendant's default in payment of a retail installment agreement to purchase a motor vehicle which resulted in the vehicle's repossession and ultimate sale. Plaintiff moved for summary judgment and defendant cross-moved to strike the complaint or to preclude plaintiff from presenting any evidence. The court granted plaintiff's motion and a judgment was subsequently entered in plaintiff's favor. The instant appeal ensued.In order to establish a prima facie entitlement to [*2]recover a deficiency judgment, plaintiff was required to establish that the sale of the subject vehicle, including the method, time, manner, place and other terms, was commercially reasonable (UCC 9-610, formerly UCC 9-504; see Ford Motor Credit v Hernandez, 210 AD2d 656 [1994]). In the instant case, the motion for summary judgment should have been denied since plaintiff failed to demonstrate that the private auction of the subject vehicle was commercially reasonable (see Ford Motor Credit Co., Inc. v Racewell Constr. Inc., 24 AD3d 500 [2005]; Kohler v Ford Motor Credit Co., Inc., 93 AD2d 205 [1983]).

Regarding defendant's cross motion to strike the complaint or to preclude plaintiff from introducing evidence for failure to provide a complete bill of particulars, we note that defendant has not specified those demands to which plaintiff failed to respond. Nevertheless, it appears that plaintiff provided defendant with the information demanded in the bill of particulars prior to the time that defendant cross-moved for said relief. Moreover, we find that defendant did not establish that plaintiff's conduct was willful or contumacious (see CPLR 3042 [d]). Thus, the lower court properly denied the cross motion.
The remaining contention relating to the denial of two prior motions for summary judgment has been rendered academic by the determination herein.

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 30, 2006