Justice David Schmidt
Waithe brought a CPLR Article 4 special proceeding to reverse and/or cancel a non-judicial sale of her shares and proprietary lease in a residential housing cooperative. Waithe also moved for reversal of the held auction, declarations invalidating both the auctioneer’s certificate of sale and a purported subsequent assignment of the successful bid to a third party, as well as a stay of a Civil Court holdover eviction proceeding commenced by the bid assignee. Waithe relied on UCC 9-611 (f), 9-613 (a) (4), 9-610 (b), and 2-103 (1) (b), as well as 3 NYCRR 418 and 3 NYCRR 419 in seeking the relief requested. With the sole exception of her claim of violation of UCC 9-611 (f), the court held that Waithe’s claims were barred, as the auction sale was commercially reasonable and either her claims were duplicative of each other or not cognizable under the law. The UCC 9-611 (f) claim, and its counterpart, RPAPL 1304, require service of a 90-day notice of foreclosure as a condition precedent to suit. The court held that UCC 9-611 (f), unlike RPAPL 1304, does not specify the manner or mode of service of the notice. Therefore, the court ordered a hearing to determine if service of the required notice was made as claimed by respondent bank.
