Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on April 29, 2025, under motion sequence number six, by defendants David Elmekies and Terri Elmekies (hereinafter the moving defendants) for an order (a) dismissing the complaint of U.S. Bank National Association, as Trustee for Adjustable Rate Mortgage Trust [*2]2006-3 Adjustable, Rate Mortgage-Backed Pass-Through Certificates, Series 2006-3 (hereinafter USBNA or the plaintiff) and (b) for leave pursuant to CPLR 2221 (e) to renew the prior motion. The grounds for making this motion are pursuant to CPLR 2221 (e), based upon new case law that would change the prior determination, and a change in the law affecting the prior decision. The motion is opposed.

Exhibit A

On March 24, 20215, the plaintiff commenced the instant action to foreclose a mortgage at a certain address in Brooklyn, New York (hereinafter the subject property) by filing a summons, complaint and notice of pendency (hereinafter the commencement papers) with the Kings County Clerk's office (KCCO).

On October 29,2015, the moving defendants interposed and filed a joint answer with counterclaims.

On April 26, 2018, plaintiff filed a motion under sequence number four, seeking, among other things summary judgment in their favor and an order of reference.

On May 30, 2018, the moving defendants filed a cross-motion under sequence number five to dismiss the complaint. The cross-motion alleged that the plaintiff lacked standing and that it failed to comply with RPAPL 1304. The cross-motion also served as opposition to plaintiff's motion under sequence number four.

By decision and order dated October 10, 2018, and entered on October 19, 2018, Justice Noach Dear issued a decision and order which denied the plaintiff's motion and the moving defendants' cross-motion. Justice Dear found that the plaintiff established its standing to commence the foreclosure, but that it did not establish its compliance with RPAPL 1304. Justice Dear further found that the moving defendants did not provide sufficient evidence demonstrating that the plaintiff failed to comply with RPAPL 1304.

On October 17, 2019, the plaintiff filed a note of issue.

On March 31, 2025, the plaintiff and moving defendants appeared before the Court for a pre-trial conference. By order dated March 31, 2025, the Court gave the moving defendant leave to file a motion for renewal of motion sequence number five with the following briefing schedule. The moving defendants must file their motion by no later than April 30, 2025. The plaintiff must file opposition by May 15, 2025, and the moving defendants may file a reply on or before May 29, 2025. The matter is set for a control date on August 8, 2025.

The parties complied with the schedule and the instant motion is fully briefed.

CPLR 2221 (a) provides in pertinent part as follows:

A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that:

1. if the order was made upon a default such motion may be made, on notice, to any [*3]judge of the court; and

2. if the order was made without notice such motion may be made, without notice, to the judge who signed it, or, on notice, to any other judge of the court.

The moving defendants seek renewal of a contested cross-motion which was decided by Justice Noach Dear. Justice Noach Dear has passed away and therefore this Court may determine the motion for renewal of the cross-motion.

"A motion for leave to renew shall be based upon 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" (HSBC Bank USA, N.A. v Chapman, 209 AD3d 848, 849 [2d Dept 2022]; CPLR 2221 [e] [2]; CPLR 2221 [e] [3]). "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Carmike Holding I, LLC v Smith, 180 AD3d 744, 747 [2d Dept 2020]; see Citimortgage, Inc. v Roque, 202 AD3d 1041, 1042 [2d Dept 2022]). Thus, "[w]hen no reasonable justification is given for failing to present new facts on the prior motion, the Supreme Court lacks discretion to grant renewal" (25 Bay Terrace Assoc., L.P. v Public Serv. Mut. Ins. Co., 194 AD3d 668, 674 [2d Dept 2021]).

Here, there is no dispute that both of the moving defendants executed a consolidation note and executed mortgage encumbering the subject property to secure that consolidated note. There is no dispute that USBNA was the holder of that note when the instant action was commenced. Also undisputed is the fact that the plaintiff mailed a 90-day notice jointly addressed to the moving defendants and did not send each moving defendant a separate 90-day notice.

These facts were known to the plaintiff and to the moving defendants at the time they filed motion sequence number four and motion sequence number five as well as at the time that Justice Noah Dear decided the motions by the decision and order dated October 10, 2018.

After October 10, 2018, the Appellate Division Second Department in several decisions clarified that for a plaintiff to strictly comply with RPAPL 1304, the statute requires that the RPAPL notice be issued and addressed to each individual borrower. This statutory requirement was restated in the matters of U.S. Bank, N.A. v Reddy, 220 AD3d 967, 971 [2d Dept 2023]; U.S. Bank N.A. v Krakoff, 199 AD3d 859, 863 [2d Dept 2021]; Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d 126, 134 [2d Dept 2021]; HSBC Bank USA, N.A. v DiBenedetti, 205 AD3d 687, 690 [2d Dept 2022]; and Deutsche Bank Natl. Trust Co. v Loayza, 204 AD3d 753, 755 [2d Dept 2022]). If the plaintiff sends one RPAPL 1304 notice jointly addressed to the borrowers, as it did in the case at bar, as opposed to sending an RPAPL 1304 notice to each borrower individually, then the plaintiff has failed to comply with the strict requirements of RPAPL 1304.

Each of these aforementioned decisions was issued after 2018. Thus, the moving defendants have established that there was a change or rather clarification of the statutory requirements of RPAPL 1304 after their cross-motion was filed and decided. They have also shown a reasonable explanation for not citing this law in support of their prior cross-motion under sequence number five since it did not yet exist. They have also established that the clarification of the statutory requirements of RPAPL 1304 would have changed the Court's prior determination.

The moving defendants' instant motion seeking renewal of their cross-motion under motion sequence number five which also served as opposition to the plaintiff's motion under motion sequence number four is granted.

The plaintiff has opposed the motion for renewal arguing that the cases cited were abrogated by the ruling of the New York State Court of Appeals in the matter Bank of Am., N.A. v Kessler, 39 NY3d 317 [2023]). In Kessler, the Court of Appeals reversed the Appellate Division, Second Department ruling in Bank of Am., N.A. v. Kessler, 202 AD3d 10 (2d Dept 2021), which held that any disclaimers or other language beyond the statutory text contained within the ninety (90) day notice violated the "separate envelope" requirement. Disagreeing, the Court of Appeals found that additional language or notices were permissible so long as they "w[ere] not false, misleading, obfuscatory, or unrelated" to the statutory text (Bank of Am., N.A. v Kessler, 39 NY3d 317, 328 [2023]). In rendering this holding, the Court identified the statute's "underlying purpose of providing information to borrowers that is or may become relevant to avoiding foreclosure," (id. at 326) and created "a workable rule that balances the practical considerations of the lender and borrower is a way that best advances the clear statutory purpose" (id. at 328). The plaintiff argues that the Kessler holding should be applied here to render the method it employed to serve the moving defendants the RPAPL 1304 notice as proper.

The Court disagrees with the plaintiff's interpretation of the Court of Appeal's holding in Kessler. Kessler does not eliminate the requirement that each borrower receive a separate mailing of the RPAPL 1304 notice. The Court respectfully disagrees with the plaintiff's analysis and conclusion.

In sum, the moving defendants' motion to renew its cross-motion under sequence number five and its opposition to plaintiff's motion under motion sequence number four is granted. Upon renewal, the moving defendants' cross-motion seeking dismissal of the complaint as asserted against them because of plaintiff failed to strictly comply with the requirements of RPAPL 1304 is granted.

The motion by defendants David Elmekies and Terri Elmekies for an order: granting leave to pursuant to CPLR 2221 (e) to renew their prior cross-motion under sequence number five and upon renewal dismissing the complaint of U.S. Bank National Association, as Trustee for Adjustable Rate Mortgage Trust 2006-3 Adjustable, Rate Mortgage-Backed Pass-Through Certificates, Series 2006-3 is granted.

The complaint of U.S. Bank National Association, as Trustee for Adjustable Rate Mortgage Trust 2006-3 Adjustable, Rate Mortgage-Backed Pass-Through Certificates, Series 2006-3 as asserted against defendants David Elmekies and Terri Elmekies is dismissed.

The foregoing constitutes the decision and order of this Court.