Svendsen v. Smith's Moving & Trucking Co.
32 U.C.C. Rep. Serv. (West) 275
NY
1981
Check Treatment

Lead Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the Per Curiam opinion of that court (76 AD2d 504). In response to appellant’s arguments advanced before us, we add the following observations : (1) the mandate of the due process clause of the New York State Constitution (art I, § 6), because it is a constitutional provision, takes precedence over the uniformity provision of the Uniform Commercial Code (§ 1-102, subd [2], par [c]); (2) the 1980 amendment of article 9 of the Lien Law in an effort to correct the constitutional infirmity in the garagemen’s lien which we recognized in Sharrock v Dell Buick-Cadillac, (45 NY2d 152) is irrelevant to the issue of the present case, because article 9 specifically excepts from its provisions the lien of a warehouseman under the Uniform Commercial Code and no similar legislative *868amendment with respect to the latter lien has been enacted; and (3) the 1979 enactment of the Truth-In-Storage Act (General Business Law, art 29-1), if it be applicable at all to the instant noncontractual situation, does not proscribe the summary non judicial sale permitted by section 7-210 of the Uniform Commercial Code which under the reasoning of Sharrock is clearly unconstitutional.





Dissenting Opinion

Jasen, J.

(concurring). Stare decisis impels me to concur with the majority in declaring section 7-210 of the Uniform Commercial Code unconstitutional (Sharrock v Dell Buick-Cadillac, 45 NY2d 152), notwithstanding that this very warehouseman’s lien foreclosure provision was recently upheld by the Supreme Court in Flagg Bros. v Brooks (436 US 149).

It is troublesome that this court’s ruling, applicable only in this State, will affect the uniformity of commercial lien law as it exists throughout our Nation. To the extent it will affect the Uniform Commercial Code, this holding undermines a part of that statute on the basis of a single State’s constitutional vagary in interpretation of the due process clause. It also vitiates a prior holding of our court in interpreting the Federal and State due process clauses. We said in Central Sav. Bank v City of New York (280 NY 9, 10): “The clauses are formulated in the same words and are intended for the protection of the same fundamental rights of the individual and there is, logically, no room for distinction in definition of the scope of the two clauses.”

Since the Legislature has seen fit to reform the Lien Law in light of this court’s decision in Sharrock (Lien. Law, § 201-a), it may wish to consider proper legislation to reform the warehouseman’s lien provision in light of this decision in order to again bring New York into the main stream of commercial law.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Jasen concurs in a concurring opinion.

Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.