Tyler v. Eastern Discount Corp.

CourtNew York Supreme Court — Appellate Term
Writing for the CourtJ. IRWIN SHAPIRO
Citation286 N.Y.S.2d 948,55 Misc.2d 1002
Decision Date31 January 1968
Parties, 5 UCC Rep.Serv. 273 Adele TYLER, Appellant, v. EASTERN DISCOUNT CORPORATION, Respondent.

Page 948

286 N.Y.S.2d 948
55 Misc.2d 1002, 5 UCC Rep.Serv. 273
Adele TYLER, Appellant,
v.
EASTERN DISCOUNT CORPORATION, Respondent.
Supreme Court, Appellate Term, Second Department.
Jan. 31, 1968.

Page 949

Dulman & Geller, Frank J. Klein, Yonkers, for appellant.

Kelberg & Dorff, Richard L. Dorff, New York City, for respondent.

Before SCHWARTZWALD, GROAT AND SHAPIRO, JJ.

OPINION

J. IRWIN SHAPIRO, Justice.

Plaintiff moved in the court below for summary judgment in the sum of $1,200. Her motion was granted to the extent of directing summary judgment in her favor but an assessment was ordered to ascertain the amount of her damages. It is from the failure of the order entered on her motion to direct judgment in the amount sought that plaintiff appeals.

Plaintiff had entered into an installment contract with the defendant for certain home improvements. The service charge for the deferred payments was the sum of $1,200, the amount for which plaintiff sought summary judgment. On December 2, 1965 plaintiff made the last payment due under the contract and she then requested of defendant

Page 950

a satisfaction of the mortgage which she had executed on the chattels covered by the contract. More than a year having elapsed and defendant having failed to deliver a satisfaction of the mortgage, plaintiff [55 Misc.2d 1003] retained counsel, who was equally unsuccessful in obtaining a satisfaction of the mortgage. It was not until after the commencement of this action that the defendant mailed the documents plaintiff had requested.

This appeal presents the anomaly of two contradictory statutes, each of which provides sanctions for the failure of the holder of a chattel mortgage, upon demand, to furnish to the debtor a satisfaction of the mortgage after full payment has been made thereunder.

The Retail Instalment Sales Act (Personal Property Law, § 414, subd. 2) provides that in the case of the failure of the holder of a secured obligation, on written demand by the debtor, to send a statement that he no longer claims a security interest under the financing statement, the debtor 'shall have the right to recover from such person an amount equal to the credit service charge or service charge imposed and the amount of any delinquency, collection, extension, deferral or refinance charge imposed.' 9--404 of the Uniform Commercial Code, on the other hand, provides that in such a situation the secured party 'shall be liable to the debtor for one hundred dollars, and in addition for any loss caused to the debtor by such failure.'

The question presented for decision upon this appeal is whether an aggrieved debtor may recover an amount equal to the credit service charge and other charges, as provided in the Personal Property Law--in this case $1,200--or whether the recovery is limited to the $100 penalty Plus the actual loss caused to the debtor by the creditor's failure to furnish him with a satisfaction, as provided in the Uniform Commercial Code.

In the court below, defendant made two contentions in opposition to plaintiff's motion for summary judgment. The first was that section 412 of the Personal Property Law, which provides for the delivery of a satisfaction of mortgage by the holder thereof, was limited by former section 72 of the Personal Property Law to a penalty of $5 plus 'all damages suffered' and that its successor section (Uniform Commercial Code 9--404) limits the penalty in such case to $100 plus 'any loss caused to the debtor by such failure,' and therefore plaintiff was not entitled summarily to be awarded judgment for $1,200. Defendant's second contention was that since the provision in section 414, subd. 2, of the Personal Property Law for the return of the entire service charge paid is more severe than similar remedies provided by section 1921 of the Real Property Actions and Proceedings Law, or sections 304 and 307 of the Personal Property Law (Motor Vehicle Retail [55 Misc.2d 1004] Instalment Sales Act), or former section 72 of the Personal Property Law and section 238 of the Lien Law (now Uniform Commercial Code 9--404),

Page 951

defendant was deprived of equal protection of the laws and due process and its privileges and immunities if section 414 were to be applied here.

The court below agreed with defendant's contention that only actual damages may be recovered, for although granting plaintiff summary judgment, he directed that a hearing be had to establish the amount of such damage. We believe in refusing to grant plaintiff the entire relief she requested the learned Court below was in error.

Section 412 of the Personal Property Law provides:

'After the payment of all sums...

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2 practice notes
  • Wesley v. John Mullins & Sons, Inc., No. 74-C-273.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 16, 1978
    ...§ 414(2). 6 N.Y.C.P.L.R. § 901(b). 7 McLaughlin, Practice Commentaries C 901:7 (McKinney 1976). 8 Tyler v. Eastern Discount Corp., 55 Misc.2d 1002, 286 N.Y.S.2d 948 (Sup.Ct., App.Term 9 Plaintiff also argues that the class members may have suffered significant "actual damages," but this pos......
  • Kultura, Inc. v. Southern Leasing Corp.
    • United States
    • Supreme Court of Tennessee
    • March 25, 1996
    ...failure to file a termination statement when another rule of law provides a greater remedy. See e.g., Tyler v. Eastern Discount Corp., 55 Misc.2d 1002, 286 N.Y.S.2d 948, 952 (N.Y.1968). In this case, Kultura contended, and the trial court initially agreed, that Southern Leasing's failure to......
2 cases
  • Wesley v. John Mullins & Sons, Inc., No. 74-C-273.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 16, 1978
    ...§ 414(2). 6 N.Y.C.P.L.R. § 901(b). 7 McLaughlin, Practice Commentaries C 901:7 (McKinney 1976). 8 Tyler v. Eastern Discount Corp., 55 Misc.2d 1002, 286 N.Y.S.2d 948 (Sup.Ct., App.Term 9 Plaintiff also argues that the class members may have suffered significant "actual damages," bu......
  • Kultura, Inc. v. Southern Leasing Corp.
    • United States
    • Supreme Court of Tennessee
    • March 25, 1996
    ...failure to file a termination statement when another rule of law provides a greater remedy. See e.g., Tyler v. Eastern Discount Corp., 55 Misc.2d 1002, 286 N.Y.S.2d 948, 952 (N.Y.1968). In this case, Kultura contended, and the trial court initially agreed, that Southern Leasing's failure to......

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