The following papers, numbered 1-12, were read and considered on the motion of the Defendants Saturnino DeJesus and Doreen DeJesus which seeks leave to renew the Defendants' cross motion for summary judgment (Mot. Seq. 3) pursuant to CPLR 2221(e) and, upon renewal, an order vacating this Court's September 21, 2021, order, and granting the Defendants' renewed motion for summary judgment, dismissing the complaint.

US Bank National Association, Not in Its Individual Capacity but Solely as Trustee for the RMAC Trust, Series 2016-CTT (hereinafter US Bank) commenced this mortgage foreclosure action against, among others, the Defendants Saturnino DeJesus and Doreen DeJesus (hereinafter the Defendants) to foreclose upon property located at 129 Fairmont Road, Carmel, NY 10541 (hereinafter the subject premises) on or about April 3, 2019. The Defendants interposed an answer in which they asserted various affirmative defenses, including, inter alia, that the Plaintiff failed to comply with the notice requirements of RPAPL § 1304. The Defendants also asserted six counterclaims against US Bank in their answer. Thereafter, the Plaintiff moved for leave to [*2]serve and file a supplemental summons, amended complaint and amended certificate of merit, which motion was granted by Decision and Order of this Court (Zugibe, J.), dated November 12, 2019. Upon service of the supplemental summons, amended complaint, and amended certificate of merit, the Defendants filed an amended answer with counterclaims that was substantively similar to their original answer.

The Plaintiff thereafter moved, inter alia, for summary judgment on the complaint and for an order of reference and the Defendants cross-moved for summary judgment and dismissal the action insofar as asserted against them. Both the motion and cross motion were denied by Decision and Order of this Court, dated September 21, 2021. As is relevant to this motion for renewal, this Court found that the Defendants had not met their prima facie burden of establishing that the Plaintiff had failed to strictly comply with RPAPL § 1304 and, therefore, that branch of the cross motion which sought dismissal on that grounds was denied.

By notice of motion, filed February 22, 2022, the Defendants have now moved for leave to renew their prior motion for summary judgment in light of the Second Department's decision of Bank of America v Kessler (202 AD3d 10 [2d Dept 2021]), which was handed down December 15, 2021. Counsel for the Defendants argues that, in light of the holding of Kessler, the notices in this case were not compliant with RPAPL § 1304(2), in that the notices contained additional language and notices extraneous to the required statutory language. Accordingly, pursuant to Kessler, as well as subsequent decisional law from the Second Department interpreting and applying Kessler, the Defendants' motion for leave to renew should be granted and, upon renewal, the Defendants' cross motion for summary judgment dismissing the complaint insofar as asserted against them must be granted.

In opposition, counsel for the Plaintiff contends that, while the Second Department has held in Kessler that the inclusion of any language in addition to the language of RPAPL § 1304(1) violated RPAPL § 1304(2), the Second Department has not addressed whether federal decisional or statutory law preempts RPAPL § 1304, nor has the Second Department addressed how RPAPL § 1304 should be construed given that it is a derogation of the common law right to foreclose a mortgage. Counsel goes on to assert that it was an error of the Appellate Division in Kessler to hold that the statutory required notices were to include only the language in RPAPL § 1304(1) and that the ruling by the Court in Kessler runs afoul of the Supremacy Clause because compliance with RPAPL § 1304(2), FDCPA, and the Bankruptcy Code is impossible. Counsel contends that, because the Appellate Division's interpretation of RPAPL § 1304 in Kessler failed to address the Supremacy Clause or the conflict between RPAPL § 1304(2), FDCPA, and the Bankruptcy Code, the Defendants' motion should be denied.

In reply, counsel for the Defendants note that, while Plaintiff's counsel may disagree with the propriety of the holding of Kessler, the law of the Second Department is binding upon these parties and this Court unless and until the Court of Appeals rules otherwise. Moreover, at least with respect to some of the Plaintiff's arguments with respect to Kessler, the Second Department has considered the Plaintiff's contentions and rejected them. Accordingly, the Defendants' motion should be granted and, upon renewal, the Defendants' cross motion for summary judgment should be granted and the complaint dismissed insofar as asserted against the Defendants.

As is relevant to this motion, a motion for leave to renew "shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221[e][2]). "A clarification of the decisional law is a sufficient change in the law to support renewal" (Dinallo v DAL Elec., 60 AD3d 620 [2d Dept 2009]; Roundabout Theatre Co. v Tishman Realty & Constr. Co., 302 AD2d 272 [2d Dept 2003]). "[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" (Dinallo v DAL Elec., 60 AD3d at 621).

Here, there is no dispute that the motion for leave to renew has been timely made, as final judgment has not been issued in this matter. Moreover, in opposing the motion, counsel for the Plaintiff has declined to raise any arguments contesting the propriety of seeking leave to renew at this juncture and, instead, has only asserted arguments addressing the merits of the underlying cross-motion for summary judgment upon renewal. Moreover, the law is well settled that a defendant can raise the argument that the plaintiff did not strictly comply with RPAPL § 1304 at any time during the action (see HSBC Bank USA, N.A. v Cardona, 193 AD3d 696, 698 [2d Dept 2021]).

RPAPL § 1304 (1) provides that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." "The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower" (Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 20 [2d Dept 2019]) and " in a separate envelope from any other mailing or notice" (RPAPL § 1304[2]). Strict compliance with RPAPL § 1304 notice to the borrower is a condition precedent to the commencement of a foreclosure action (see Citibank, N.A. v Conti-Scheurer, 172 AD3d at 20).

On December 15, 2021, in Bank of America, N.A. v Kessler (202 AD3d 10 [2d Dept 2021]), the Appellate Division, Second Department held, in a matter of first impression, 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 [emphasis added]).

In the months since Kessler was handed down, the Second Department has had the opportunity to apply its strict compliance standard across a number of cases and has consistently adhered to the bright line standard articulated in Kessler without exception (see Wells Fargo v Bedell, — AD3d —, 2022 NY Slip Op 03413 [2d Dept, May 25, 2022][inclusion of separate notice language pertaining to the rights of a debtor in military service and a debtor in bankruptcy violated separate envelope statutory requirement]; US Bank v Drakakis, — AD3d —, 2022 NY Slip Op 03022 [2d Dept, May 4, 2022][inclusion of document titled "Consumer Notice Pursuant to 15 USC Section 1692[G]" violated the "separate envelope" mandate of RPAPL § 1304(2)]; HSBC Bank v DiBenedetti, — AD3d —, 2022 NY Slip Op 02983 [2d Dept, May 4, 2022][Plaintiff could not establish that it strictly complied with RPAPL § 1304 where additional material was sent in the same envelope as the 90-day notice]; Bank of New York Mellon v Govan, 204 AD3d 878 [2d Dept 2022][inclusion of separate notice concerning the rights of a debtor in [*3]bankruptcy and military service violates the separate envelope mandate of RPAPL § 1304(2)]; HSBC Bank USA, National Association v Jahaly, 204 AD3d 648 [2d Dept 2022][inclusion of additional notices not contemplated by RPAPL § 1304 constitute failure to strictly comply with RPAPL § 1304]; US Bank National Association v Hinds, 203 AD3d 1210 [2d Dept 2022][same]; Deutsche Bank v Bancic, 203 AD3d 1130 [2d Dept 2022][additional notices and verbiage referencing bankruptcy and the rights of military servicemembers]; Deutsche Bank v Salva, 203 AD3d 700 [2d Dept 2022][inclusion of "Important Disclosures" regarding bankruptcy and rights for military personnel]; Ocwen Loan Servicing, LLC v Sirianni, 202 AD3d 702 [2d Dept 2022][inclusion of two notices pertaining to the Federal Fair Debt Collection Practices Act and bankruptcy violated "separate envelope" mandate]; Wells Fargo v DeFeo, 200 AD3d 1105 [2d Dept 2021][inclusion of notice concerning Home Affordable Modification Program and bankruptcy issues violated the "separate envelope" mandate]; Citimortgage, Inc.v Dente, 200 AD3d 1025 [2d Dept 2021][inclusion of notice regarding chapter 11 bankruptcy violated "separate envelope" mandate]).

The trial Courts of this State have, likewise, had time to apply Kessler's holding. In some instances, the application is simple and straight-forward (see HSBC v Roumiantseva, 2022 WL 1601126 [Sup Ct, Kings Cty, May 16, 2022][inclusion of additional sections relating to bankruptcy and the FDCPA in RPAPL § 1304 notice warranted, inter alia, granting Defendant's motion for summary judgment]; US Bank v Bell, 2022 WL 1540317 [Sup Ct, Kings Cty, May 12, 2022][inclusion of enclosure regarding homeowner counseling violated RPAPL § 1304(2)]; MTGLQ v Kovaleva, 2022 WL 1519049 [Sup Ct, Kings Cty, May 2, 2022][inclusion of additional material substantiating other rights of the recipient violates RPAPL § 1304]; Wells Fargo v Gerrato, 74 Misc 3d 649 [Sup Ct, Suffolk Cty, January 19, 2022]), while in other instances, the trial Court has found creative ways to circumvent the application of the law (see Wilmington Sav. Fund. Soc., FSB v Sotomayor, 2022 WL 1559439 [Sup Ct, Westchester Cty, May 12, 2022][finding Kessler decision was not a change in the law or a sufficient clarification of decisional law on the "strict compliance" approach with respect to the separate envelope requirement to form a basis for renewal pursuant to CPLR 2221(e)]; Bank of New York Mellon v Luria, 75 Misc 3d 1205(A) [Sup Ct, Putnam Cty, May 11, 2022][on motion for renewal, Supreme Court holds motion in abeyance pending additional briefing from parties on two issues raised sua sponte by the Court, rather than applying the law of Kessler to the facts of the case or addressing the arguments put forth by the litigants in the motion]).

Here, as noted above, the Plaintiff contends that the Appellate Division's failure to discuss, in Kessler, the interplay between the Federal Debt Collection Practices Act (FDCPA), the Bankruptcy Code, and RPAPL § 1304, or whether the Kessler ruling runs afoul of the Supremacy Clause, should warrant denial of the Defendants' motion. Alternatively, the Plaintiff contends that, given the possibility that Kessler might be reversed, if and/or when leave to appeal to the Court of Appeals is granted, the Defendants' motion should be denied as premature. Importantly, no where does the Plaintiff assert that the RPAPL § 1304 notice sent in this matter strictly complies with RPAPL § 1304, including the separate envelope mandate contained in RPAPL § 1304(2).

Until the Court of Appeals says otherwise, the ruling of Kessler is the binding precedent that this Court must apply. Upon review of the RPAPL § 1304 notices sent in this matter [*4](NYSCEF Doc 183), it is clear that the Plaintiff failed to strictly comply with the provisions of RPAPL § 1304. Specifically, while pages 1 and 2 of the notices reproduce verbatim the required language articulated in RPAPL § 1304[1], pages 3, 4, 5, 6, 7, and 8, are pages of various additional notices regarding, among other things, debt collection, credit reporting, bankruptcy, Servicemembers Civil Relief Act Notice Disclosures, and State Specific notices. The inclusion of these additional notices violates the separate envelope mandate of RPAPL § 1304(2). As such, the Defendants have established their entitlement to summary judgment. In opposition, the Plaintiff has failed to raise a triable issue of fact. As such, the Court grants the Defendants' motion for leave to renew their prior cross motion for summary judgment and, upon renewal, grants summary judgment to the Defendants Saturnino DeJesus and Doreen DeJesus (see Wells Fargo v Bedell, — AD3d —, 2022 NY Slip Op 03413 [2d Dept, May 25, 2022]; US Bank v Drakakis, — AD3d —, 2022 NY Slip Op 03022 [2d Dept, May 4, 2022]; HSBC Bank v DiBenedetti, — AD3d —, 2022 NY Slip Op 02983 [2d Dept, May 4, 2022]; Bank of New York Mellon v Govan, 204 AD3d 878; HSBC Bank USA, National Association v Jahaly, 204 AD3d 648; US Bank National Association v Hinds, 203 AD3d 1210; Deutsche Bank v Bancic, 203 AD3d 1130; Deutsche Bank v Salva, 203 AD3d 700; Ocwen Loan Servicing, LLC v Sirianni, 202 AD3d 702; Wells Fargo v DeFeo, 200 AD3d 1105; Citimortgage, Inc.v Dente, 200 AD3d 1025). Accordingly, it is hereby

ORDERED that the motion of the Defendants Saturnino DeJesus and Doreen DeJesus (Mot. Seq. 6), which sought leave to renew their prior cross motion for summary judgment (Mot. Seq. 3) is granted; and it is further

ORDERED that, upon renewal, the Defendants' cross motion for summary judgment is granted; and it is further

ORDERED that the complaint is dismissed.

The foregoing constitutes the Decision and Order of this Court.