[*2]Upon the foregoing papers it is ordered that the plaintiff's motion for a preliminary injunction is granted to the extent that defendant Emigrant Savings Bank is prohibited from foreclosing on her cooperative. The plaintiff shall give an undertaking in the amount of $5,000. The defendant's cross motion is denied.

I. Overview

On or about March 14, 2007, plaintiff Vivien Goldman executed a collateral note and security agreement in the amount of $99,000 in favor of the Emigrant Mortgage Company, Inc. covering shares of stock and a proprietary lease for a cooperative apartment known as Apartment 3E, 72-15 37th Avenue, Jackson Heights, New York. On or about November 1, 2010, the Emigrant Mortgage Company sent Goldman a document captioned "90-Day Notice" stating that " this notice is required pursuant to Section 1304 of the New York Real Property Actions and Proceedings Law." The notice informed her, inter alia, that as of November 1, 2010, her loan was 92 days in default, that she could cure the default by making a payment of $5,435.16 by January 31, 2011, and that she was at risk of losing her home. On or about March 31, 2011, defendant Emigrant Savings Bank, the assignee of the collateral note and security agreement, sent the plaintiff a notice of foreclosure and a notice of sale because of alleged defaults by Goldman. The notice of sale provided that in the event Goldman failed to pay the sum due and owing ($96,316.64 plus accrued interest, late charges, and miscellaneous fees) or failed to bring a proceeding under Section 201-A of the Lien Law, the bank would sell her property at a public auction on May 6, 2011. Plaintiff Goldman alleges that the notice of sale failed to comply with the requirements of UCC 9-611(f) because (1) it was untimely, (2) it was not printed on colored paper, (3) it did not include language directing her to non-profit service providers and the New York State Department of Banking for information, and (4) it was not electronically filed with the Department of Banking.

Goldman began this action by the service of an order to show cause, summons, and complaint on May 5, 2011. The complaint, seeking to permanently enjoin the foreclosure sale of the plaintiff's property, alleges that the notice of sale sent on or about March 31, 2011 failed to comply with RPAPL § 1304 and UCC 9-611(f). (The notice sent on November 1, 2011 is actually the relevant notice in this case.) On May 3, 2011, the plaintiff obtained a temporary restraining order prohibiting the bank from going forward with the sale.

The defendant bank's instant cross motion to dismiss fails because of the limited use of affidavits on a CPLR 3211(a)(1) motion. The bank cannot use an affidavit on this CPLR 3211(a)(1) motion to prove that the UCC 9-611(f) notice was sent on colored paper as statutorily required. Plaintiff Goldman is entitled to a preliminary injunction prohibiting foreclosure on her cooperative in order to preserve the status quo.

II. Jurisdiction

"The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with***." (El Greco Soc. of Visual Arts, Inc. v Diamantidis, 47 AD3d [*3]929; Matter of Hennessey v DiCarlo, 21 AD3d 505.) The failure to comply with the service requirements of an order to show cause will result in the dismissal of an action for lack of personal jurisdiction ( see, Jones v. Dennison, 30 AD3d 952), and a court may deny a motion where a party does not make personal service in the manner directed in an order to show cause. (See, Contimortgage Corp. v Garrett, 32 AD3d 977.) The defendant bank alleges in a conclusory manner that the plaintiff failed to effectuate service of the papers as directed by the service clause of the order to show cause. The service clause directed the plaintiff to effectuate service by making personal delivery of the order to show cause, summons, and verified complaint on or before May 5, 2011. William J. Fallon, a process server, has submitted an affidavit of service alleging that on May 5, 2011, at approximately 3:45 PM, he delivered a copy of the summons and complaint to Marceline Cameron, a person authorized to accept service for Maryanne Killman, an assistant vice-president of the defendant bank, at 1000 Merchants Concourse, Westbury, New York. Fallon has also submitted an unsworn "affirmation of service" alleging that at the same time and place he served a copy of the order to show cause with supporting papers upon Cameron. An affidavit of a process server constitutes prima facie evidence of proper service ( Wells Fargo Bank, N.A. v. McGloster 48 AD3d 457), and conclusory denials of receipt of process are insufficient to rebut the presumption of proper service created by the affidavit of a process server. ( Beneficial Homeowner Service Corp. v. Girault, 60 AD3d 984.) In the case at bar, the process server has submitted an affidavit of service pertaining to the summons and complaint, and the defendant bank did not adequately rebut the prima facie showing of proper service made by the plaintiff. The process server submitted only an unsworn "affirmation of service" pertaining to the order to show cause, but, taking into consideration that the process server alleges that all of the papers were served at the same time, the court finds the affirmation to be adequate, especially in light of the defendant's conclusory denial of service. Sharon Charles, a loan administrator for the bank, has submitted her affidavit denying in a conclusory fashion that the plaintiff served the bank with the order to show cause, but there is no affidavit from Cameron or Killman. Under the circumstances, the defendant did not raise an issue of fact concerning proper service that requires a hearing, and the court finds that the plaintiff complied with the service clause of the order to show cause.

III. RPAPL §1304 and UCC 9-611(f)

RPAPL §1304 provides with regard to a home loan, that, inter alia, at least ninety days before a lender begins an action against a borrower to foreclose on a mortgage the lender must provide notice to the borrower that the loan is in default and his home is at risk. (See, Aurora Loan Services, LLC v. Weisblum, 85 AD3d 95.) "[P]roper service of the RPAPL 1304 notice containing the statutorily-mandated content is a condition precedent to the commencement of the foreclosure action." ( Aurora Loan Services, LLC v. Weisblum, supra, 103.)

Shares in a cooperative apartment are personal property, rather than real property, and UCC Article 9 controls security interests in the shares. (See, State Tax Commission v. Shor, 43 NY2d 151; Brief v. 120 Owners Corp., 157 AD2d 515.)In late 2009, a bill requiring similar notice to residential homeowners of cooperative apartments and offering similar protections to them as RPAPL §1304 became law, and the bill is now codified at UCC 9-611(f).(See, Stern-Obstfeld v. [*4]Bank of America, 30 Misc 3d 901.) UCC 9-611(f) is the statute relevant to the case at bar. ( The 90-day notice sent by the defendant Bank erroneously mentions RPAPL §1304.) The ninety notice directed by UCC 9-611(f) is "very particular in its requirements, and provides information about counseling services and other matters that may assist cooperative apartment homeowners in obtaining help when faced with the potential loss of a home ***." ( Stern-Obstfeld v. Bank of America, supra, 905-906.)

IV. The Ninety Day Notice

UCC 9-611(f)(1) requires the lender to send to the debtor the additional pre-disposition notice required by that section "not less than ninety days prior to the date of the disposition of the cooperative interest." Goldman objects that the notice sent to her on or about March 31, 2011, which scheduled the foreclosure sale for May 6, 2011, did not afford her at least ninety days notice of the sale.

In its cross motion to dismiss, the defendant bank attached a document captioned "90 Day Notice" which states "This notice is required pursuant to section 1304 of the New York Real Property Actions and Proceedings Law." Sharon Charles, a loan administrator for the bank, swears that on November 1, 2010, she " caused the annexed 90-Day Notice *** to be mailed to plaintiff Vivien Goldman *** by certified mail and by regular first class mail." The defendant also submitted postal receipts, including a postal receipt stamped November 6, 2010 by the Post Office which bears Goldman's signature.

UCC 9-611(f) requires the notice to inform the debtor that he can obtain information and assistance from "an attorney, a legal aid office, or a government agency or non-profit organization that provides counseling with respect to home foreclosures." The notice sent by the defendant bank included a list of not-for-profit counseling organizations, and the notice advised the debtor that, inter alia, "Not for profit housing counselors provide free, professional advice." The notice also advised the debtor that she could obtain more information from the New York State Department of Banking by using its toll-free help line or website.

UCC 9-611(f)(2) provides in relevant part: "The notice required by this subsection shall be in bold, fourteen-point type and shall be printed on colored paper that is other than the color of the notice required by subsection (b) of this section ***." The copy of the 90-day notice submitted to the court does not have printing on colored paper. Sharon Charles swears that the "90-day notice was sent on colored paper."

V. The Bank's CPLR 3211(a)(1) Cross Motion

CPLR 3211 provides in relevant part: "(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:1.a defense is founded on documentary evidence***." (See, Galvan v. 9519 Third Avenue Restaurant Corp., 74 AD3d 743.) In order to prevail on a CPLR 3211(a)(1) motion, the documentary [*5]evidence submitted " must be such that it resolves all the factual issues as a matter of law and conclusively and definitively disposes of the plaintiff's claim***." ( Fernandez v. Cigna Property and Casualty Insurance Company, 188 AD2d 700,702; see, Galvan v. 9519 Third Avenue Restaurant Corp, supra; Vanderminden v.Vanderminden, 226 AD2d 1037; Bronxville Knolls, Inc. v.Webster Town Center Partnership, 221 AD2d 248.) The documentary evidence in this case establishes that plaintiff Goldman's complaint is erroneously based on the notice sent to her on March 31, 2011. The documentary evidence establishes that the relevant notice was sent to her on November 1, 2011 by certified mail, return receipt requested. The defendant produced a postal receipt stamped November 6, 2010 which bears her signature. However, UCC 9-611(f), like RPAPL 1304, must be strictly construed (see, Aurora Loan Services, LLC v. Weisblum, supra), and the documentary evidence submitted to the court does not establish that the required notice was printed on colored paper. The copy included in the defendant's papers is not colored, and on a CPLR 3211 (a) (1) motion the affidavit of Sharon Charles may not be used to establish a fact in issue. Although affidavits may be used on a CPLR 3211(a)(1) motion as "connecting links," affidavits may not be used as proof in themselves of a fact in issue. (See, Realty Investors of USA Inc. v. Bhaidaswala, 254 AD2d 603; Standard Charted Bank v. D. Chabbott, Inc., 178 AD2d 112.) Proper service of a UCC 9-611(f) notice complying with the statutory mandates is a condition precedent to foreclosure (see, Aurora Loan Services, LLC v. Weisblum, supra; Stern-Obstfeld v. Bank of America, supra), and the documentary evidence submitted on this CPLR 3211(a)(1) motion does not establish that the defendant bank strictly complied with the statute.

The cross motion is denied, but the defendant bank may, if it is so advised, bring a properly noticed motion for summary judgment.

VI. The Plaintiff's Motion for a Preliminary Injunction

A party moving for a preliminary injunction has the burden of showing a likelihood of ultimate success on the merits, irreparable injury if provisional relief is withheld, and the weight of the equities in his favor. ( Aetna Ins. Co. v. Capasso , 75 NY2d 860.) Plaintiff Goldman carried this burden, considering that there is at present no 90-day notice in the record adequately shown to be compliant with UCC 9-611, and she is entitled to a preliminary injunction prohibiting the defendant Bank from foreclosing on her cooperative shares in order to preserve the status quo. (See, Stern-Obstfeld v. Bank of America, supra.) The plaintiff shall give an undertaking in the amount of $5,000.

Dated: Long Island City, NY

August 19, 2011

______________________________

ROBERT J. MCDONALD

J.S.C.