Telmark, Inc. v. Lavigne

Despite a creditor’s failure to give notice of sale of the security to the debtor, a creditor may still recover a deficiency judgment against the debtor by proving the amount of the debt, the fair market value of the security and the resulting deficiency (Security Trust Co. v Thomas, 59 AD2d 242, 246-247). Here, plaintiff has established defendant’s default and the amount of the debt, and there is an issue of fact only as to the fair market value of the secured property. There being no issue other than the amount of damages, plaintiff is entitled to partial summary judgment on the issue of liability and the matter is remitted to Onondaga County Supreme Court for an assessment of damages (see, CPLR 3212 [c], [e]; Chrysler Credit Corp. v Mitchell, 94 AD2d 971; Flickinger Co. v 18 Genesee Corp., 71 AD2d 382, 385-386). (Appeal from order of Supreme Court, Onondaga County, Tenney, J. — summary judgment.) Present — Doerr, J. P., Boomer, Green, Pine and Balio, JJ.