Credit Acceptance Corp. v. Holness ( 2023 )

Credit Acceptance Corp. v Holness (2023 NY Slip Op 51376(U)) [*1]

Credit Acceptance Corp. v Holness

2023 NY Slip Op 51376(U)

Decided on December 18, 2023

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 18, 2023

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hagler, P.J., Brigantti, Tisch, JJ.
571097/23

Credit Acceptance Corporation, Plaintiff-Appellant,

against

Jacqueline M. Holness, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Jeffrey S. Zellan, J.), entered July 24, 2023, which denied its motion to strike defendant's answer and for summary judgment, and, upon a search of the record, granted summary judgment to defendant dismissing the complaint, pursuant to CPLR 3212(b).

Per Curiam.

Order (Jeffrey S. Zellan, J.), entered July 24, 2023, reversed, without costs, the grant of summary judgment to defendant is vacated, the complaint reinstated, and the matter remanded for a determination of plaintiff's motion on the merits.

Civil Court erred in searching the record and granting summary judgment to defendant on a usury defense that was not raised by defendant (see Baseball Off. of Commr. v Marsh & McLennan, 295 AD2d 73, 82 [2002]), either in her answer or on the motion, upon which she defaulted, and because plaintiff had no notice of the defense and thus no opportunity for opposition (see Quizhpe v Luvin Constr., 70 AD3d 912, 914 [2010]; Lanoce v Anderson, Banks, Curran & Donoghue, 259 AD2d 965 [1999]).

We remand the matter for further proceedings, including disposition of plaintiff's motion — denied as moot below.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 18, 2023