DECISION AND ORDER In this action for breach of contract arising from defendant’s alleged failure to pay sums borrowed for the purchase of an automobile, plaintiff moves for an order granting it summary judgment. Specifically, plaintiff contends that it is entitled to summary judgment because defendant breached the relevant agreement between the parties. Defendant opposes the instant motion, saliently asserting that questions of fact with regard to the existence of fraud preclude summary judgment. For the reasons that follow hereinafter, plaintiff’s motion is denied. The complaint alleges that plaintiff’s assignor, Rivera Autogroup, Inc. (RAI), and defendant entered into a Retail Installment Contract (RIC) and that plaintiff is the assignee of the foregoing agreement. It is further alleged that pursuant to the RIC, defendant was required to make monthly installment payments to RAI and by failing to do so, defaulted under the terms of the RIC. As a result of the foregoing, plaintiff seeks a judgment in the amount of $13,067.44. Plaintiff’s motion for summary judgment is denied insofar as material questions of fact exist with regard to whether defendant is a party to the RIC. Significantly, defendant establishes that she never executed the RIC and that her signature on the RIC was forged. The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof (Mondello v. DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v. New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v. Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v. City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v. County of Erie, 212 AD2d 1027, 1028 [4th Dept 1995]). Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant’s burden to proffer evidence in admissible form is absolute, the opponent’s burden is not. As noted by the Court of Appeals, [t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing summary judgment’ in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact.’ Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case (Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v. Phillips, 261 AD2d 269, 270 [1st Dept 1999]). Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman (278 AD2d 811, 811 [4th Dept 2000]), [s]upreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v. Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v. Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court’s function when determining a motion for summary judgment is issue finding not, issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v. Goodson, 8 NY2d 8, 12 [1960]). It has long been held that absent a violation of law or some transgression of public policy, people are free to enter into contracts, making whatever agreement they wish, no matter how unwise they may seem to others (Rowe v. Great Atlantic & Pacific Tea Company, Inc., 46 NY2d 62, 67-68 [1978]). Consequently, when a contract dispute arises, it is the court’s role to enforce the agreement rather than reform it (Grace v. Nappa, 46 NY2d 560, 565 [1979]). In order to enforce the agreement, the court must construe it in accordance with the intent of the parties, the best evidence of which being the very contract itself and the terms contained therein (Greenfield v. Philles Records, Inc., 98 NY2d 562, 569 [2002]). Thus, it is well settled that “when the parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms” (Vermont Teddy Bear Co., Inc. v. 583 Madison Realty Company, 1 NY3d 470, 475 [2004] [internal quotation marks omitted]). Moreover, “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield at 569). Accordingly, courts should refrain from interpreting agreements in a manner which implies something not specifically included by the parties, and courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing (Vermont Teddy Bear Co., Inc. at 475). This approach, of course, serves to preserve “stability to commercial transactions by safeguarding against fraudulent claims, perjury, death of witnesses [and] infirmity of memory” (Wallace v. 600 Partners Co., 86 NY2d 543, 548 [1995] [internal quotation marks omitted]). Provided a writing is clear and complete, evidence outside its four corners “as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing” (W.W.W. Assoc., Inc. v. Giancontieri, 77 NY2d 157, 162 [1990]; see Greenfield v. Philles Records, Inc., 98 NY2d 562, 569 [2002]; Mercury Bay Boating Club Inc. v. San Diego Yacht Club, 76 NY2d 256, 269-70 [1990]; Judnick Realty Corp. v. 32 W. 32nd St. Corp., 61 NY2d 819, 822 [1984]). Whether a contract is ambiguous is a matter of law for the court to decide (W.W.W. Assoc., Inc. at 162; Greenfield at 169; Van Wagner Adv. Corp. v. S & M Enterprises, 67 NY2d 186, 191 [1986]). A contract is unambiguous if the language it uses has “definite and precise meaning, unattended by danger of misconception in purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion” (Greenfield at 569; see Breed v. Ins. Co. of N. Am., 46 NY2d 351, 355 [1978]). Hence, if the contract is not reasonably susceptible to multiple meanings, it is unambiguous and the court is not free to alter it, even if such alteration reflects personal notions of fairness and equity (Greenfield at 569-70). Notably, it is well settled that silence, or the omission of terms within a contract are not tantamount to ambiguity (id. at 573; Reiss v. Financial Performance Corp., 97 NY2d 195, 199 [2001]). Instead, the question of whether an ambiguity exists must be determined from the face of an agreement without regard to extrinsic evidence (Greenfield at 569-570), and an unambiguous contract or a provision contained therein should be given its plain and ordinary meaning (Rosalie Estates, Inc. v. RCO International, Inc., 227 AD2d 335, 336 [1st Dept 1996]). In the absence of fraud or other wrongful act, a party who signs a written contract is presumed to know and have assented to the contents therein (Pimpinello v. Swift & Co., 253 NY 159, 162 [1930]; Metzger v. Aetna Ins. Co., 227 NY 411, 416 [1920]; Renee Knitwear Corp. v. ADT Sec. Sys., 277 AD2d 215, 216 [2d Dept 2000]; Barclays Bank of New York, N.A. v. Sokol, 128 AD2d 492, 493 [2d Dept 1987]; Slater v. Fid. & Cas. Co. of N.Y., 277 AD 79, 81 [1st Dept 1950]). In discussing this long-standing rule the court in Metzger stated that [i]t has often been held that when a party to a written contract accepts it as a contract he is bound by the stipulations and conditions expressed in it whether he reads them or not. Ignorance through negligence or inexcusable trustfulness will not relieve a party from his contract obligations. He who signs or accepts a written contract, in the absence of fraud or other wrongful act on the part of another contracting party, is conclusively presumed to know its contents and to assent to them and there can be no evidence for the jury as to his understanding of its terms. This rule is as applicable to insurance contracts as to contracts of any kind. (Metzger at 416 [internal citations omitted]). The essential elements in an action for breach of contract “are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of his or her contractual obligations, and damages resulting from the breach” (Dee v. Rakower, 112 AD3d 204, 209 [2d Dept 2013]; Elisa Dreier Reporting Corp. v. Global Naps Networks, Inc., 84 AD3d 122, 127 [2d Dept 2011]; Brualdi v. IBERIA Lineas Aeraes de España, S.A., 79 AD3d 959, 960 [2d Dept 2010]; JP Morgan Chase v. J.H. Elec. of N.Y., Inc., 69 AD3d 802, 803 [2d Dept 2010]; Furia v. Furia, 116 AD2d 694, 695 [2d Dept 1986]). Unless expressly proscribed by the Statute of Frauds (General Obligations Law §5-701), a contract or agreement need not be in writing (see generally McCoy v. Edison Price, Inc., 186 AD2d 442, 442-443 [1st Dept 1992] [Alleged oral agreement which, by its terms, was to last for as long as defendant remained in business was incapable of performance within one year, rendering it voidable under Statute of Frauds.]; Karl Ehmer Forest Hills Corp. v. Gonzalez, 159 AD2d 613, 613 [2d Dept 1990] ["An oral promise to guarantee the debt of another is barred by the Statute of Frauds."]). In support of its motion, plaintiff submits an affidavit by Donna Delahanty (Delahanty), a Supplier Management Administrator employed by plaintiff, who states the following: Upon review of plaintiff’s records, and more specifically, the RIC between RAI and defendant, she learned that on February 5, 2017, defendant entered into the RIC in order to purchase a 2017 Toyota RAV4. Pursuant to the RIC, defendant was required to make 72 monthly payments of $703.22, the first payment to be made on March 22, 2017. Defendant defaulted under the terms of the RIC when she failed to make a payment when due. Thereafter, plaintiff repossessed the vehicle. On October 26, 2017, plaintiff mailed a notice to defendant notifying her that she had the right to redeem the vehicle or reinstate the RIC. The notice apprised defendant that if she failed to redeem or reinstate, the vehicle would be sold. Defendant failed to redeem or reinstate and on March 21, 2018, the vehicle was disposed at a “private auction in a commercially reasonable manner.” The proceeds of the sale, $22,400, was applied to defendant’s outstanding balance of $37,366.08. After expenses, defendant owed $13,067.44. On April 4, 2018, defendant was sent a copy of the Explanation of Calculation of Surplus or Deficiency. Delahanty states that all the documents referenced by her in her affidavit, including the RIC, and which are appended to plaintiff’s motion and her affidavit, were made and kept in the ordinary course of plaintiff’s business, that it was plaintiff’s ordinary course of business to make the records and that the records were made at the time when the transactions in those records occurred1. Plaintiff submits the RIC, which bears defendant’s signature listing her as the buyer and indicates that on February 5, 2017, defendant, in connection with the purchase of 2017 Toyota RAV4, borrowed $40,079.44 from RAI and agreed that with interest, she would repay $54,631.84, that payments would be made monthly in the amount of $703.22, and that the failure to repay sums due would constitute a default. Upon default, the RIC gave plaintiff the right to repossess the vehicle and sell the same if it was not redeemed or if the RIC was not reinstated. Any amounts due after crediting the proceeds of the sale would be assessed to defendant. The RIC also indicates that it was immediately assigned to plaintiff. Plaintiff submits a document titled Notice of Our Plan to Sell Property (NOPSP). The document bears defendant’s address and indicates that plaintiff intended to sell the 2017 Toyota RAV4 as early as November 10, 2017 via private sale. The document further indicates that defendant could reinstate the RIC by tendering $1,105.68 to plaintiff on or before November 10, 2017, said amount representing a month’s payment plus late charges and fees associated with the vehicle’s repossession. The document also indicates that defendant could redeem the vehicle by tendering $37,772.28, said amount representing the balance on the RIC and late charges and fees associated with the vehicle’s repossession. Plaintiff submits two additional documents. The first is a Buyer’s Receipt, which indicates that the Toyota RAV4 was sold at auction by Manheim New Jersey on March 21, 2018 for $22,975. The second document is dated April 4, 2018, apprising defendant of the sale and that she owed plaintiff $13,067.44 after application of the proceeds. Based on the foregoing, plaintiff establishes prima facie entitlement to summary judgment on its cause of action for breach of contract. Significantly, the essential elements in an action for breach of contract “are the existence of a contract, the plaintiff’s performance pursuant to the contract, and damages resulting from the breach” (Dee v. Rakower, 112 AD3d 204, 209 [2d Dept 2013]; Elisa Dreier Reporting Corp. v. Global Naps Network, Inc., 84 AD3d 122, 127 [2d Dept 2011]; Brualdi v. IBERIA Lineas Aeraes de España, S.A., 79 AD3d 959, 960 [2d Dept 2010]; JP Morgan Chase v. J.H. Elec. of N.Y., Inc., 69 AD3d 802, 803 [2d Dept 2010]; Furia v. Furia, 116 AD2d 694, 695 [2d Dept 1986]). Here, plaintiff appends the RIC to its motion, whose foundation was laid by Delahanty. The RIC evinces that defendant borrowed money from plaintiff’s assignor to purchase an automobile, agreed to repay said loan over the course of 72 months, and that the failure to pay would constitute a breach. Additionally, Delahanty’s affidavit and the NOPSP dated October 26, 2017, establishes that defendant failed to pay sums when due such that she breached the RCI. Delahanty’s affidavit, the RIC and the NOPSP further establish that plaintiff rightfully repossessed the vehicle and appropriately apprised defendant of the impending sale and defendant’s right to redeem or reinstate the RIC. Lastly, the RIC, the Buyer’s receipt and the document dated April 4, 2018 establish that the vehicle’s sale resulted in a deficiency of $13,067.44 and that defendant was apprised of the same. Defendant’s opposition papers and the evidence appended thereto, however, raise a material issue of fact with regard to whether, as a result of fraud — here forgery — defendant is a party to the RIC and therefore, liable for breach of the same. In opposition to the instant motion, defendant submits an affidavit, wherein she states the following: In February 2017, she lived with her mother at the premises located at 3722 Bronx Blvd, Apt. 3, Bronx, NY 10467. Manuel Terrero (Terrero), a boarder, also lived with defendant. In February 2017, Terrero asked defendant to help with an errand. Defendant reported outside and found Terrero with another man and a child. The man drove an SUV and took everyone to a dealership in Westchester. Everyone went inside and while defendant sat in the waiting area, Terrero and the other man went into an office to speak to an employee. Approximately 20 minutes later, defendant was called into the office. While in the office with Terrero, the man, and two employees, defendant was asked to sign documents which defendant was told were a credit check authorization form and another form stating that defendant was a student. Although feeling uncomfortable, never being given an opportunity to read the documents, and assuming that she would never be approved for any car purchase, defendant nevertheless signed the forms. Defendant had no intention of co-signing for any vehicle and had previously indicated the same to Terrero when he had requested the same. Thereafter, Terrero drove defendant home in a RAV4. Defendant was never told that she had co-signed for a vehicle nor does she recall signing the RIC. When she ultimately saw the RIC, the signature thereon appeared to be forged. Defendant ultimately received a title in the mail, apprising her that she owned the RAV4. She confronted Terrero, who indicated that he would pay off the vehicle, but nevertheless then confiscated the title. Defendant learned that Terrero stopped making payments on the vehicle and she called the dealership to return it. A review of documents appended to her affidavit — copies of defendant’s driver’s license and a form from her college — depicts her signature. Defendant appends a copy of her driver’s license to her affidavit. The same bears her signature, which is at variance with the signature on the RIC. Defendant also appends an Override Form from the College of Mount Saint Vincent. The form bears defendant’s name and is dated January 26, 2016. It is signed by defendant and the signature resembles the one on defendant’s driver’s license. Based on the foregoing, defendant establishes that she did not execute the RIC and that her signature was forged thereon. As such, she raises a triable issue of fact with respect to whether she is bound by the RIC. Again, the essential elements in an action for breach of contract “are the existence of a contract, the plaintiff’s performance pursuant to the contract, and damages resulting from the breach” (Dee at 209; Elisa Dreier Reporting Corp. at 127; Brualdi at 960; JP Morgan Chase at 803; Furia at 695). If then, a party never executed a contract, it/he/she cannot be bound thereby. As noted above, in the absence of fraud or other wrongful act, a party who signs a written contract is presumed to know and have assented to the contents therein (Pimpinello at 62; Metzger at 416; Renee Knitwear Corp. at 216; Barclays Bank of New York, N.A. at 493; Slater at 81). With regard to forgery as the basis of fraud, “[s]omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature (Banco Popular N. Am. v. Victory Taxi Mgt., Inc., 1 NY3d 381, 384 [2004]; see Kanterakis v. Minos Realty I, LLC, 151 AD3d 950, 952 [2d Dept 2017]; TD Bank, N.A. v. Piccolo Mondo 21st Century, Inc., 98 AD3d 499, 500 [2d Dept 2012]). Expert opinion is not required to establish forgery, but when proffered, the expert is required to state that a signature is inauthentic to a reasonable degree of professional certainty (Kanterakis at 952; Banco Popular N. Am. at 384). In TD Bank, N.A., defendant raised a triable issue of fact sufficient to preclude summary judgment on the issue of forgery “when, in addition to [defendant's] affidavit, [she submitted] copies of her driver’s license and passport as examples of her signature” (id. at 499). By contrast, in Banco Popular N. Am., defendant’s denial that the signature at issue was his, standing alone, was insufficient to establish forgery so as to preclude summary judgment (id. at 384). Thus, defendant’s assertion that she never read the documents plaintiff purports to bind her — here, the RIC — is not availing, since she is presumed to have read what she signed (Pimpinello at 62; Metzger at 416; Renee Knitwear Corp. at 216; Barclays Bank of New York, N.A. at 493; Slater at 81). Similarly, her assertion about oral misrepresentations regarding the documents she signed is without merit. Significantly, provided a writing is clear and complete, evidence outside its four corners “as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing” (W.W.W. Assoc., Inc. at 162; see Greenfield at 569; Mercury Bay Boating Club Inc. at 269-70; Judnick Realty Corp. at 822). However, defendant’s assertion — here, supported with evidence — that someone forged her signature on the RIC is sufficient to controvert plaintiff’s prima facie showing (TD Bank, N.A. at 499; see Estaba v. Estaba, 129 AD3d 601, 601 [1st Dept 2015] ["Plaintiff's affidavit averring that her signature on the 1966 deed is a forgery, along with the supporting documents attached thereto, were sufficient to raise an issue of fact as to the authenticity of that signature, warranting denial of MERS' summary judgment motion."]). To be sure, a review of the signature on the RIC and those on defendant’s driver’s license and the Override Form evince that the signature on the RIC varies greatly from the one on defendant’s other documents. More compelling is the fact that defendant’s signature on the documents she proffers is almost identical, giving rise to an inference that her signature is as reflected therein. Indeed, this inference militates towards the conclusion that the signature on the RIC is not defendant’s. Accordingly, plaintiff’s motion for summary judgment is denied for this reason alone. While the Court need not address the other grounds upon which defendant urges denial of the instant motion, it bears noting that each and every one is unavailing. For example, it is true that “[a]fter default, a secured party may sell, lease, license, or otherwise dispose of any or all of the collateral in its present condition” (UCC §9-610). As such, a deficiency judgment can only be had upon a showing of “the commercial reasonableness of every aspect of the disposition of the collateral (Merchants Bank of New York v. Gold Lane Corp., 28 AD3d 266, 268 [1st Dept 2006]). Here, however, defendant’s assertion that plaintiff fails to meet its burden on this issue because it “fails to provide any evidence of the fair market value of the vehicle at the time of disposition,” is simply not a requirement required by law. To be sure, in Merchants Bank of New York, the court found that plaintiff had not met its burden with respect to the commercial reasonableness of the disposition therein because defendant’s affidavit “never indicated, expressly or implicitly, that the collateral was disposed of in a commercially reasonable manner” (id. at 269). Here, by contrast, Delahanty states that the vehicle was sold at “private auction in a commercially reasonable manner.” As such, here, plaintiff has met its burden on this issue. Defendant’s reliance on Coxall v. Clover Commercial Corp., (4 Misc 3d 654 [Civ Ct 2004]) for the assertion to the contrary is misplaced. To be sure, the reason that the court in Coxal concluded that the defendant failed to meet its burden as to the commercial reasonableness of the disposition of the vehicle therein is because the sale price of the Lexus vehicle therein was very low, triggering the heightened scrutiny prescribed by law (id. at 662-663; see Cent. Budget Corp. v. Garrett, 48 AD2d 825, 825-26 [2d Dept 1975] ["marked discrepancies between the disposal and sale prices signal a need for closer scrutiny, especially where, as here, the possibilities for self-dealing are substantial. Under these circumstances, we require some affirmative showing that the terms of the disposition were, in fact, commercially reasonable and hold that, in the absence of such a showing, we will be compelled to deny recovery in a suit for a deficiency judgment pursuant to subdivision (2) of section 9-504 of the code" (internal citations omitted)]). Here, $22,975 for a Toyota RAV4, is hardly the marked discrepancy between the disposal and market price required to trigger heightened scrutiny of plaintiff’s sale of the instant collateral. Stated differently, $1,500 for a Lexus — a luxury vehicle — is objectively low, whereas $22,975 for a Toyota is not. It is hereby ORDERED that defendant serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof. This constitutes this Court’s decision and Order. Dated : April 22, 2021
