Supreme Court, Suffolk County, May 2, 2022

Logs Legal Group, Rochester, for plaintiff.

Charles Wallshein, Melville, for Gary Abraham, also known as Gary P. Abraham and another, defendant.

It is ordered that this motion (No. 003) by the plaintiff for, inter alia, leave to enter a judgment of foreclosure and sale, pursuant to Real Property Actions and Proceedings Law § 1351, is granted, and it is further ordered that the cross motion (No. 004) by the defendant, Gary Abraham, seeking an order granting renewal of his prior motion (No. 002) and, upon renewal, dismissal of the complaint, is denied, and it is further ordered that the proposed order submitted by plaintiff, as modified by the court, is signed simultaneously herewith; 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 the court's order dated July 15, 5019 (Whelan, J.S.C.), is presumed, wherein the court granted plaintiff's motion (No. 001) for summary judgment as against the answering defendants, default judgments against the remaining defendants, and the appointment of a referee to compute, and denied defendant Gary Abraham's cross motion (No. 002) to dismiss. On August 6, 2019, plaintiff served the July 2019 order with notice of entry. On September 3, 2019, defendant filed a notice of appeal with the Appellate Division, Second Judicial Department. On December 8, 2021, the plaintiff filed the instant motion (No. 003) seeking confirmation of referee Mark Cuthbertson, Esq.'s report and leave to enter a judgment of foreclosure and sale of the subject property incorporating the referee's findings. The plaintiff's submissions include a report of amount due to plaintiff dated October 20, 2021, copies of the note and mortgage, and an accounting of plaintiff's attorneys' costs in prosecuting this action. On December 30, 2021, defendant Gary Abraham filed opposition to the motion as well as a cross motion (No. 004) seeking renewal of his previously denied motion (No. 002). Plaintiff opposed the cross motion.

The court will first consider the defendant's cross motion (No. 004) as determination thereof may render determination of the plaintiff's motion, academic.

A motion for leave to renew pursuant to CPLR 2221 (e) "shall be based upon new facts not offered on the prior motion that{**75 Misc 3d at 878} would change the prior determination, and shall contain reasonable justification for the failure to present such facts on the prior motion" (Bank of N.Y. Mellon v Izmirligil, 88 AD3d 930, 932 [2d Dept 2011]; Siegel v Monsey New Sq. Trails Corp., 40 AD3d 960 [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, Westchester County 2017], revd 179 AD3d 688 [2d Dept 2020], citing Dinallo v DAL Elec., 60 AD3d 620 [2d [*2]Dept 2009]; Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364 [2d Dept 2000]).

The basis for defendant's cross motion is the Appellate Division, Second Department's opinion in Bank of Am., N.A. v Kessler (202 AD3d 10 [2d Dept 2021] [3-1 dissent]). 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 Am., N.A. v Kessler, 202 AD3d at 14). Defendant contends that this "new law" requires that his prior motion be renewed and, upon 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 this 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 Am., 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.{**75 Misc 3d at 879}

The court notes that although the defendant filed a timely notice of appeal, such was dismissed for defendant's failure to perfect. "Absent circumstances set forth in CPLR 5015, which are inapplicable here, a motion for leave to renew based upon a change in the law must be made before the time to appeal the final order has expired" (Daniels v Millar El. Indus., Inc., 44 AD3d 895, 895 [2d Dept 2007], citing Matter of Huie [Furman], 20 NY2d 568, 572 [1967]; Matter of Eagle Ins. Co. v Persaud, 1 AD3d 356, 357 [2003]; Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d at 366; see also Benitez v City of New York, 2 AD3d 285 [2003]). It follows, therefore, that a subsequent appeal of the issue in this case would not be reviewable.

"[T]here must be an end to lawsuits and the time to take an appeal cannot forever be extended. Absent the sort of circumstances mentioned in CPLR 5015, such as newly discovered evidence, fraud, lack of jurisdiction, etc., a determination of a court from which no appeal has been taken ought to remain inviolate" (Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d at 366, citing Matter of Huie [Furman], 20 NY2d at 572).

Here, the issue was not "raise[d] an[d] . . . pursued in the course of a timely perfected appeal" (Gonzalez v L'Oreal USA, Inc., 92 AD3d 1158, 1160 [3d Dept 2012], citing KLCR Land Corp. v New York State Elec. & Gas Corp., 15 AD3d 719, 720 [3d Dept 2005]; accord Matter of Suzanne v Suzanne, 69 AD3d 1011, 1012 [3d Dept 2010]), as the defendant allowed his time to perfect the appeal to lapse.

For these reasons, the defendant's cross motion (No. 004) is denied.

Turning then to plaintiff's submissions, the court finds that the plaintiff has established its entitlement to a judgment of foreclosure and sale, namely the referee's findings and report (see US Bank N.A. v Saraceno, 147 AD3d 1005 [2d Dept 2017]; Mortgage Elec. Registration Sys., Inc. v Holmes, 131 AD3d 680 [2d Dept 2015]; HSBC Bank USA, N.A. v Simmons, 125 AD3d 930 [2d Dept 2015]). As noted, no hearing was required (see Wells Fargo Bank, N.A. v Zelaya, 56 Misc 3d 1219[A], 2017 NY Slip Op 51068[U] [2017]). Although the court is not bound by the referee's findings, the report of a referee should be confirmed whenever the findings are substantially supported by the record (see{ Citimortgage, Inc. v Kidd, 148 AD3d 767 [2d**75 Misc 3d at 880}Dept 2017]; Matter of Cincotta, 139 AD3d 1058 [2d Dept 2016]; Hudson v Smith, 127 AD3d 816 [2d Dept 2015]), and the court so finds in this case.

The portion of plaintiff's motion seeking attorneys' fees is also granted, as the terms of the subject loan documents allow for same. Here, plaintiff has supplied the court with an affirmation of services and is requesting a total of $6,712.50. The court finds this amount to be reasonable, and will award plaintiff same (see Vigo v 501 Second St. Holding Corp., 121 AD3d 778 [2d Dept 2014]).

In light of the foregoing, plaintiff's motion (No. 003) is granted, and the defendant's cross motion (No. 004) is denied. The proposed order for judgment of foreclosure and sale, as modified by the court, has been signed concurrently herewith.