In this action seeking to recover the alleged unpaid balance due for a retail installment contract the plaintiff moves for summary judgment. The defendant submitted an answer to the complaint and filed a one page opposition to the instant motion. Plaintiff filed a reply and an affidavit in further support in response to defendant's allegations in her opposition.

In support of the motion, the plaintiff has submitted the affidavit of Alisson Mendoza, the Collection Manager of the plaintiff. Ms. Mendoza asserts in her affidavit that she has access to the records of New City Funding Corp. and that her knowledge of the underlying facts is based upon her review of plaintiff's records kept in the regular course of business. Ms. Mendoza affirms that on April 8, 2017 the defendant entered into a retail installment contract for the purchase of a used vehicle pursuant to which defendant was obligated to repay an auto loan by making thirty-six (36) monthly installment payments of $306.05, inclusive of interest at a rate of $24.95%, after making a down payment of $3,083.00, for a total contract price of $10,296.00. Each monthly payment was to be made on the 8th of each month with the first payment to be made starting on May 8, 2017. The contract further provides for a late charge of 5% of any payment made more than ten (10) days after the due date. A copy of the retail installment contract signed by the defendant is attached to the plaintiff's moving papers as Exhibit "A". Ms. Mendoza further affirms that following the entry of the contract and "it became apparent that the [*2]defendant would not or could continue making payments", plaintiff repossessed the vehicle.^[FN1] Defendant made her last payment of $300.00 on January 8, 2018. A copy of the defendant's payment history is attached as Exhibit "B". Ms. Mendoza affirms that defendant was notified of the repossession and sale as well as advised of her rights to redeem or reinstate the subject vehicle. A copy of the notice sent to defendant regarding the repossession and sale are attached to plaintiff's moving papers as Exhibit "C". The notice is dated February 13, 2018 and states that the vehicle will be sold on or after February 23, 2018. Notably, there are no affirmations regarding the mailing of the notice, specifically the date on which is was mailed. The defendant failed to redeem or reinstate the vehicle and plaintiff then sold the vehicle at a commercial auction for $1,060.00. After the vehicle was sold at the auction a copy of a Notice of Sale dated June 25, 2019 was mailed to the defendant advising her that a balance of $5,603.32 remained due and owing to plaintiff on the retail installment contract. A copy of the Notice of Sale is attached to plaintiff's moving papers as Exhibit "E". Ms. Mendoza states that the defendant made four (4) payments to plaintiff after the date on which the vehicle was sold at auction. A copy of the plaintiff's Repossession Balance Ledger, attached as Exhibit "F" to plaintiff's moving papers, shows that four payments totaling $175.00 were made by the defendant, with the last payment being made on December 11, 2018. Ms. Mendoza affirms that the amount sought by way of the instant motion was calculated by taking the gross obligation owed by defendant at the time of the default and crediting that balance with the amount plaintiff received for the vehicle at auction coupled with all applicable credits to defendant's account, including the amount of the total payments made by the defendant prior to her default and after the auction sale of the vehicle. Plaintiff waived the costs and fees it incurred in repossessing the vehicle. Ms. Medoza asserts that the balance due of $5,221.65 consists of the $5,060.60 in unpaid principal, $159.23 in accrued interest and $1.82 in late fees. Ms. Mendoza further asserts that plaintiff was forced to commence the instant action due to defendant's default and as such, demands judgment for the outstanding amount due on the contract of $5,221.65, as calculated above. Ms. Mendoza states that the contract, under a section title "Default", provides that it is entitled to collect its reasonable attorneys fees if the account is referred to an attorney for collection. The pertinent section of the contract states, "If you default, you agree to pay....You also agree to pay reasonable attorneys' fees not in excess of 15% of the unpaid debt after default and referral to an attorney not a salaried employee of ours."

In opposition, defendant asserts that she purchased a 2008 Jeep Laredo that had over 140,000 miles from Mahopac Motorboys dealership in April 2017. Defendant avers that she had problems with the vehicle within a week of purchasing it and that she made numerous phone calls to both the dealership as well as plaintiff regarding her issues. Defendant asserts that she had a thirty (30) warranty. Defendant further states that neither the dealership nor plaintiff ever resolved her issues with the vehicle and the only solution was for her to voluntarily allow the plaintiff to repossess the vehicle.

In reply, plaintiff contends that the defendant has failed to establish that either an express or an implied warranty was breached. First, plaintiff asserts that there was no express warranty [*3]as the defendant did not purchase a warranty or an extended protection plan as evidenced by the section in the installment contract marked "Additional Protections" being left blank. Moreover, plaintiff contends that defendant has failed to establish through evidentiary proof that she had problems with the vehicle. Lastly, plaintiff contends that defendant has failed to raise a material issue of fact regarding her failure to fulfill her obligations under the contract.

It is well settled that in order to obtain summary judgment, the movant must establish its cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law. The party opposing the motion must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests. Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 (1988); Zuckerman v. City of New York, 49 NY2d 557 (1980). A movant for summary judgment must demonstrate entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate material issues of fact (Washington v. Community Mutual Savings Bank, 308 AD2d 444 (2nd Dept 2003)). Summary judgment is such a drastic remedy that it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v Goodson, 8 NY2d 8 (1960).

The contract in the current matter is a secured transaction governed by Article 9 of the Uniform Commercial Code. When a secured party, like plaintiff, elects to repossess and resell, the party must establish that notice of the sale was timely and reasonable (UCC 9-611; UCC 9-614) and that the vehicle, as collateral, was disposed of in a commercially reasonable manner (UCC 9-610). The contents and form of notification are prescribed generally for all transactions (UCC 9-613(a)) and for consumer goods transactions (UCC 9-614(a)). A notification in a nonconsumer transaction that does not include all of the prescribed information may still be found sufficient as a matter of fact. (See UCC 9-13(b)). However, in a consumer transaction, such as the case at bar, [a] notification that lacks any of the [prescribed] information is insufficient as a matter of law. (UCC 9-614).

In the case at bar, plaintiff has failed to establish that the purported notification of the sale of the subject vehicle was provided to the defendant. Plaintiff neither submits proof of actual mailing or proof of a standard practice and procedure designed to ensure that the February 13, 2018 notice was properly addressed and mailed to defendant on that same day. Plaintiff merely submitted the affidavit of its Collection Manager who simply asserts that "[p]laintiff notified [d]efendant of the repossession and offered defendant an opportunity to redeem the vehicle". Ms. Menoza provides no description of office practices and procedures regarding mailing and there is no indication that she has personal knowledge that the February 18, 2018 notice was mailed. Ms. Mendoza does not even assert that the Notice was mailed on February 18, 2018 but rather simply avers that the defendant was notified of the repossession and possibility of redemption and refers the Court to a copy of the Notice. Moreover, although plaintiff attempts in its Affidavit in Further Support to offer evidence of office policies and procedures regarding the mailing of notices, said affidavit is devoid of any indication that notices are actually mailed on the date indicated on the notice and there is no indication that he has personal knowledge regarding the notice sent to defendant either. As such, plaintiff has failed to establish that the requisite UCC notice was sent to the defendant 10 days prior to the sale date as set forth in the [*4]contract. See Toyota Motor Credit Corp v Kalantarov, 65 Misc 3d 1226(A) (Civ Ct Queens Cty 2019)

Plaintiff has also failed to overcome defendant's allegations that the vehicle was defective at the time of purchase. Specifically, defendant alleges that within a week of purchasing the vehicle the check engine light came on and that she called the dealership and was told it was nothing. Defendant further avers that she complained to both the dealership where she purchased the car as well as to plaintiff to no avail regarding the defective condition of the vehicle. She further asserts that on numerous occasions the car would give her trouble including not starting. Defendant assertions that the vehicle was not working properly calls into question the statutory warranty mandated on the sale of used automobiles under VTL § 417 as well as the more generally applicable implied warranty of merchantability under UCC § 2-314. Defendants assertions create issues of fact with respect to said warranties that preclude the Court from granting summary judgment.

Based upon the foregoing, plaintiff's motion for summary judgment is denied. The parties are directed to appear for a Pre-Trial Conference on June 6, 2022 at 10:30 am.

This constitutes the Decision and Order of this Court.

The Court considered the following papers on this motion:

Notice of Motion for Summary Judgment dated June 8, 2021, Affirmation, Affidavit in Support, Exhibits A-F; Defendant's Opposition dated August 11, 2021; Reply Affirmation on Motion for Summary Judgment dated August 30, 2021; Affidavit in Further Support of Summary Judgment dated October 22, 2021.