The plaintiff, Keystone Nazareth Bank & Trust Company (Keystone), moves, pursuant to CPLR 2221 (d), or, alternatively, CPLR 2221 (e), for leave to reargue, or, alternatively, to renew the court's November 5, 2010 decision and order which granted the motion of the defendants Ahuva Rosenbaum and Jehuda Rosenbaum (the defendants) to dismiss Keystone's foreclosure action, and, upon such reargument or renewal, to vacate the November 5, 2010 order and deny the defendants' dismissal motion.

Background

Keystone, assignee of the mortgage herein, commenced this foreclosure action against the [*2]defendants after they had defaulted on the mortgage loan secured by their real property located at 1946 51st Street in Brooklyn. The defendants in December 2006 had consolidated a series of their previous debts, borrowed $490,000 from Approved Funding Corp., a New York Corporation and signed a promissory note providing for monthly payments of $3,218.95 for 30 years. Thereafter, the defendants defaulted on their May 1, 2009 loan repayment, and Keystone commenced this foreclosure action on December 16, 2009.

The defendants moved to dismiss and contended, among other points, that Keystone "failed to allege or provide evidence that it has served . . . the required notice(s) pursuant to RPAPL §1304, which is a condition precedent to filing the instant action". In response, among other points, argued that "[t]here is no requirement that a complaint contain such allegation. Indeed, CPLR §3015(a) provides that the performance or occurrence of a condition precedent in a contract need not be pleaded.'" Moreover, Keystone alleged that the 90-day notice complying with RPAPL 1304 was given in a November 19, 2008 letter annexed to its summons and complaint. However, CPLR 3015 (a) "applies only to a condition precedent emanating from a contract. If it is a statutory condition precedent [as here, with RPAPL 1304] it is still the burden of the one bringing the cause of action to both plead and prove" (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3015:2). Here, Keystone failed to plead compliance with RPAPL 1304's condition precedent, and the aforementioned November 5, 2010 order granted the motion to dismiss without prejudice. This reargument/renewal motion has ensued.

Keystone now asserts in its moving papers that RPAPL 1304, as originally enacted in 2008, only applied to "high cost," "subprime" "non-traditional"home loans. RPAPL 1304 in its current form, which applies to any home loan did not become effective until January 14, 2010, after Keystone commenced this action. Therefore, Keystone maintains that it bore no obligation to send the defendants the 90-day RPAPL 1304 notice before commencing this action because the subject mortgage herein was not a high cost, subprime or a non-traditional loan. Keystone contends that its failure to raise this ground of opposition in its motion to dismiss is an "inadvertent error", and further notes that it raised this issue at oral argument.

The defendants oppose Keystone's motion because Keystone's original opposition papers failed to claim that the subject mortgage was not a high cost, subprime or non-traditional loan. The defendants stress that Keystone had ample time to research and raise this defense since it was served with the motion to dismiss in January 2010 and submitted its opposition papers to the court eight months later. The defendants further assert that informing the court that the loan Keystone was seeking to foreclose was not the type of loan covered by RPAPL 1304 when the action was commenced was itself a condition precedent to commencing the instant action.

A motion to reargue, pursuant to CPLR 2221, must "be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]). Such motion is addressed to the discretion of the court (V Veeraswamy Realty v Yenom Corp., 71 AD3d 874 [2010]), but it "is not an appropriate vehicle for raising new questions which were not previously advanced" (People v Bachert, 69 NY2d 593, 597 [1987]).Here, the plaintiff contends in requesting [*3]reargument that the court overlooked factual matter put before it by holding that compliance with RPAPL 1304 is a mandatory condition precedent to commencing the instant action, when, at the time the action was commenced, this statute did not apply to the type of mortgage at issue in the instant foreclosure. New York enacted lending reform legislation in August of 2008 which provided additional protection for homeowners (see L 2008, ch 472, § 2). The reform amended RPAPL 1304, which requires that a notice containing specific mandatory language be sent at least 90 days before the lender commences legal action against the borrower.

This case was commenced in December 2009 at the time when RPAPL 1304 applied to foreclosures of "high-cost," "subprime," and "non-traditional" home loans (Aurora Loan Services, LLC v Weisblum,_____ AD3d_____, 2011 NY Slip Op 04184, *5 [2011]), consummated between January 1, 2003 and September 1, 2008 (Butler Capital Corp. v Cannistra, 26 Misc 3d 598, 599 [Sup Ct, Suffolk County, 2009]).^[FN1] However, the plaintiff's assertion, that the mortgage in issue is not a high-cost, subprime or a non-traditional home loan, is not a proper basis for reargument because the plaintiff improperly asserts this position for the first time in the present motion (see Woody's Lbr. Co., Inc. v Jayram Realty Corp., 30 AD3d 590, 592-593 [2003]) ("defendant's contention that there are triable issues of fact as to whether the plaintiff was precluded from seeking specific performance of the contract was raised for the first time in connection with the defendant's motion for reargument").

A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to present arguments different from those originally presented" (Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388 [2005]). However, the court can prudently exercise its discretion and grant the motion to reargue where a party can satisfactorily show misapprehension or overlooking of a fact (Barrett v Jeannot, 18 AD3d 679, 680 [2005]). Examining the Kings County Clerk's court file and opposition papers to the motion to dismiss shows that the plaintiff merely made conclusory statements about RPAPL 1304's inapplicability to the instant action. However, the question whether the loan at issue qualifies as a high-cost, subprime or non-traditional home loan is raised by the plaintiff's papers for the first time in connection with the instant motion for reargument. Granting the instant motion would therefore be contrary to the intent of a motion to reargue because it would allow the plaintiff to raise a position not previously advanced.

Moreover, the plaintiff's failure to make the present argument in its previous papers negates its argument that the court overlooked or misapprehended the relevant facts regarding whether the loan at issue is a high-cost, subprime or non-traditional home loan. The terms "high-cost home loan" and "subprime home loan" are "complex," and "based on the variables and complexities of the parameters involved in defining these terms . . . the Court . . . should [not] . . . be expected to . . . flippantly draw its own conclusions as to whether or not the loan at issue meets [these] definitions" (Butler Capital Corp. v Cannistra, 26 Misc 3d at 603.^[FN2] The plaintiff, a party with personal [*4]knowledge on all aspects of the loan at issue, failed to previously raise the present argument, and the resulting order thus contained no determination whether the loan at issue is a high-cost, subprime or non-traditional home loan. Reargument under these circumstances is unwarranted because the previous determination could not have overlooked or misapprehended an argument never made.

A motion to renew requires the moving party show new facts "not offered on the prior motion that would change the prior determination" and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e]). If the "evidence upon which renewal [is] sought was available to the plaintiff at the time when [it] submitted [its] opposition . . . it [does] not constitute a proper ground for renewal (Seltzer v City of New York, 288 AD2d 207 [2001]).

Here, the plaintiff does not identify any new fact. Instead it submits a new argument based on exactly the same facts previously available when it filed its prior motion in opposition to the defendants' motion to dismiss. Here, the facts relevant for making the determination whether the loan at issue is a high-cost, subprime or non-traditional home loan were not newly discovered by the plaintiff at this time. Thus, denying the renewal branch of the plaintiff's motion represents the proper outcome. Accordingly, it is

ORDERED that the plaintiff's motion seeking leave to reargue and renew is denied.

This constitutes the decision and order of the court.

E N T E R,

____________________________

yvonne lewis, JSC