Merchants Bank v. Gold Lane Corp.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered February 22, 2005, which, to the extent appealed from, denied plaintiffs motion for summary judgment on its cause of action to recover a deficiency judgment against defendant Gold Lane Corp., affirmed, without costs. Following defendant Gold Lane’s defaults under various promissory notes payable to plaintiff bank, jewelry from Gold Lane’s inventory was surrendered by defendants and auctioned by plaintiff to satisfy Gold Lane’s outstanding indebtedness under the notes and the personal guarantees of the individual defendants. The amount obtained at auction was insufficient to cover the outstanding indebtedness and plaintiff now seeks a deficiency judgment. While plaintiff has, in support of its summary judgment motion for that relief, submitted the evidence of a certified appraiser indicating that the market value of the inventory turned over by defendants was reasonably close to 267 the price obtained for the jewelry at auction, defendants have submitted evidence that the actual cost of the jewelry at issue was significantly higher than the market value computed by the bank’s appraiser and have raised factual questions as to the validity of the methods apparently employed by the appraiser, whose report seems to concentrate on the weight of the surrendered items and to assign little or no value to the items as high quality finished jewelry. Defendants’ evidence is sufficient to raise a triable issue as to the commercial reasonableness of the collateral’s sale (cf. Leonia Bank v Kouri, 286 AD2d 654, 655 [2001]; First Fed. Sav. & Loan Assn. of Rochester v Romano, 253 AD2d 363, 364 [1998]). Also supportive of the denial of summary judgment is the unexplained circumstance that the bank, while seeking a deficiency judgment, would appear, based on its submissions, to be still in possession of certain items of unsold collateral. Procedurally, the affidavit of Paul DeKeukelaere, a vice-president of plaintiff, was sufficient to establish a prima facie showing of entitlement to summary judgment, including on the issue of the commercial reasonableness of the sale of collateral. The appraisals plaintiff submitted in reply properly responded to arguments raised in defendant’s opposition. Concur—Buckley, P.J., Mazzarelli and Catterson, JJ.