Maguire Leasing Corp. v. Irving Falb & Co.

• Decision Date: 08 July 1975
• Citation: 371 N.Y.S.2d 123,49 A.D.2d 540
• Parties: , 17 UCC Rep.Serv. 638 MAGUIRE LEASING CORP., Plaintiff-Respondent, v. IRVING FALB & CO., etc., et al., Defendants, and Irving Falb, etc., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 123

371 N.Y.S.2d 123

49 A.D.2d 540, 17 UCC Rep.Serv. 638

MAGUIRE LEASING CORP., Plaintiff-Respondent, v. IRVING FALB & CO., etc., et al., Defendants, and Irving

Falb, etc., et al., Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

July 8, 1975.

B. Goldstein, New York City, for plaintiff-respondent.

A. M. Feder, S. B. Terkeltoub, New York City, for defendants-appellants.

Before STEVENS, P.J., and KUPFERMAN, MURPHY, TILZER and CAPOZZOLI, JJ.

PER CURIAM.

Judgment, Supreme Court, New York County, entered February 26, 1975, modified, on the law, so as to calculate interest at the rate of 6% Rather than 7 1/2%, and, as so modified, the judgment is affirmed. Respondent shall recover of appellants $60 costs and disbursements of this appeal.

Plaintiff seeks to recover the balance due under an equipment lease agreement. The agreement provided for 36 installments at the rate of approximately $614 per month. The defendant partnership defaulted on October 25, 1972 after having paid 16 installments. The plaintiff, however, did not at that time repossess the collateral and indeed, was advised by the attorney for the defendants-appellants that he would attempt to dispose of it. It appears that those efforts were fruitless and accordingly, the plaintiff attempted to arrange to dispose of the equipment at the best price possible. Initially, the present occupant of the defendant-partnership's former premises requested that the equipment be removed and urged that the plaintiff should pay him (the occupant rental for maintaining the equipment. Negotiations, however, took place and the present occupant offered to purchase the equipment for $1,350. That offer proved to be several hundreds of dollars higher than any other offer received by the plaintiff.

After selling the equipment, plaintiff brought this action to recover the balance due under the lease. A motion for summary judgment was made and granted, the court directing an assessment of damages. It is to be noted that no direct appeal was taken from the order granting summary judgment. At the time of the motion for summary judgment, no issue was raised with respect to any failure upon the part of plaintiff to give notice of sale pursuant to UCC § 9--504(3). At the assessment, however, defendants, for the first time, urged that notice had not been given and that such, in effect, released them from any obligations on the underlying agreement. The Trial Justice however, concluded that 'defendants' contention that plaintiff is not entitled to recover damages because notice was not given to the defendant is untenable'. And, since it was found that the sale was made under circumstances that were commercially reasonable, the Trial Court awarded judgment for the balance due, plus interest and attorney's fees.

We agree with the Trial Court's conclusion that the facts adduced at the assessment demonstrated that the sale of the equipment was conducted in a commercially reasonable manner. The testimony established that efforts were made to obtain the highest offer. We believe, further, that it is not appropriate in the circumstances of this case to reach the issue relied upon in the dissenting opinion. It is concluded by the dissenters that since notice of the sale was not given, plaintiff may not prevail. (Leasco Data Processing Equipment Corporation v. Atlas Shirt Company, Inc., 66 Misc.2d 1089, 323 N.Y.S.2d 13; see, also, Manufacturers Hanover Trust Co. v. Goldstein, 25 A.D.2d 405, 270 N.Y.S.2d 261.) That issue, as already indicated, was never raised on the motion for summary judgment and accordingly, was waived. To the extent that the issue of notice was raised belatedly at the assessment, it was of relevance only with respect to the amount of damages. And although the appeal from the final judgment brings up for review the order granting summary judgment (CPLR § 5501(a)(1)), we are limited upon such review to the prior record made upon that order.

Considering the failure to raise the issue of notice in a timely manner and in view of the circumstances of this case, including the fact that defendants were given ample time to arrange for the sale of the equipment, we believe that the judgment in favor of plaintiff...