Upon the following papers numbered 1 to 11 read on this motion to renew; Notice of Motion/Order to Show Cause and supporting papers 1-5; Notice of Cross Motion and supporting papers: Opposing papers: 6-7; Reply papers 8; Other Memoranda (9, 10, 11); ORDERED that the motion (#004) by defendant Raymond Wahl seeking leave to renew defendant’s prior cross motion (#003) for summary judgment and, upon renewal, an order granting that motion is denied in its entirety; and it is further ORDERED that plaintiff is directed to submit its motion for confirmation of the referee’s report and judgment of foreclosure and sale within 45 days of the date of entry of this order; and it is further ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR §202.5-b(h)(2). Familiarity with this Court’s Order dated March 1, 2022 is presumed, wherein plaintiff’s motion (#002) for summary judgment, default judgment, amendment of the caption and the appointment of a referee to compute was granted and defendant Raymond Wahl’s cross motion (#003) for summary judgment to dismiss the complaint was denied. By the instant motion (#004), defendant seeks to renew his previous cross-motion (#003) for summary judgment and, upon renewal, an order granting defendant summary judgment and dismissing the complaint. Plaintiff has opposed the motion and defendant filed a reply. A motion for leave to renew pursuant to CPLR 2221(e) “shall be based upon new facts not offered on a prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion” (Mellon v. Izmirligil, 88 AD3d 930, 931 NYS2d 667 [2d Dept 2011]; Siegel v. Morsey New Sq. Trails Corp., 40 AD3d 960, 836 NYS2d 678 [2d Dept 2007]). Alternatively, a motion for renewal may rest upon a demonstration “that there has been a change in the law that would change the prior determination” (CPLR 2221[e][2]). “[A] motion for leave to renew based upon a change in the law must be made prior to the entry of a final judgment or before the time to appeal has expired (Lockwood v. City of Yonkers, 57 Misc 3d 728, 730 [Sup Ct 2017], revd, 179 AD3d 688 116 NYS3d 383 [2d Dept 2020], citing Dinallo v. DAL Elec., 60 AD3d 620, 874 NYS2d 246 [2d Dept 2009]; Glicksman v. Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364, 717 NYS2d 373 [2d Dept 2000]). The basis for defendant’s motion (#004) as a whole, is the Appellate Division Second Department’s Opinion in Bank of America, N.A. v. Kessler, 202 AD3d 10, 160 NYS3d 277 (2d Dept 2021) (3-1 dissent) issued on December 15, 202 1. There, in a matter of first impression, it was held that the “inclusion of any material in the separate envelope sent to the borrower under RPAPL 1304 that is not expressly delineated in [the statute] constitutes a violation of the separate envelope requirement of RPAPL 1304(2)” (Bank of America, N.A. v. Kessler, 202 AD3d at 14). Defendant contends that this “new law” requires that his prior motion be renewed and, upon such renewal, and application of Kessler, that the complaint be dismissed. The Court disagrees. CPLR 2221(e) requires that there be a change in the law that would affect a prior determination. The Kessler holding, however, is not a “change in the law.” As the Honorable Colleen Duffy notes in opening, “[t]his appeal requires the Court to address the issue of how exacting the requirement of strict compliance is with respect to the ‘separate envelope’ mandate of RPAPL 1304″ (Bank of America, N.A. v. Kessler, 202 AD3d at 11). In confirming the application of the “strict compliance” standard with respect to the notices sent pursuant to RPAPL 1304, Kessler “merely clarifies existing law” and, as such, “does not afford a basis for renewal attributed to a change in the law” (D’Alessandro v. Carro, 123 AD3d 1, 7 [1st Dept 2014], citing Philips Intl. Invs., LLC v. Pektor, 117 AD3d 1[1st Dept 2014]). No ruling to the contrary, within this Department or otherwise, exists. Thus, Kessler does not “change” any law, and defendant’s motion must be denied. In any event, this Court’s position regarding Kessler is in accord with the holdings in CIT Bank, N.A. v. Neris, __ F. Supp 3d __, WL 1799497 (SDNY June 2, 2022) and Bank of New York Mellon v. Luria, __ NYS3d __, 2022 WL 2797776 (Sup Ct July 18, 2022), which declined to follow Kessler given the “conflict between the bright-line rule in Kessler and the obligations imposed by the FDCPA” (CIT Bank v. Neris, 2022 WL 1799497, at *6), as well as the position that “Kessler and its progeny prohibit inclusion of the FDCPA ‘mini-Miranda’ warning and bankruptcy advisory in a Section 1304 90-day notice” results in a rule “inconsistent with the provisions of the FDCPA” and, therefore, “preempted by virtue of 15 U.S.C. §1692n” (Bank of New York Mellon v. Luria, 2022 NY Slip Op 22218). The defendant has not demonstrated any entitlement to attorney’s fees, as he has not been successful as a prevailing party to the foreclosure action (see Bank of America v. Destino, 138 AD3d 654, 29 NYS3d 56 [2d Dept 2016]). Defendant’s motion (#004) is therefore denied in its entirety. Plaintiff is hereby directed to file its motion for confirmation of the referee’s report and judgment of foreclosure and sale within 45 days of the date of entry of the within order. Dated: August 1, 2022
