Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 22, 2026

2024-11199, (Index No. 711798/18)

Betsy Barros, J.P.

Lara J. Genovesi

Lourdes M. Ventura

Elena Goldberg Velazquez, JJ.

[*1]

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the defendants James Thomas and Delories Thomas appeal from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), entered July 12, 2024. The order (1) granted the plaintiff's motion for leave to renew its opposition to the motion of the defendants James Thomas and Delories Thomas for leave to renew their opposition to the plaintiff's prior motion for summary judgment on the complaint insofar as asserted against them, to strike those defendants' answers, for an order of reference, and to amend the caption, which prior motion by the plaintiff had been granted in an order of the same court dated January 25, 2022, which motion for leave to renew by those defendants had been granted in an order of the same court dated February 7, 2023, and, upon renewal, the order dated January 25, 2022, had been vacated and thereupon the plaintiff's prior motion had been denied, and, (2) upon renewal, vacated the order dated February 7, 2023, and thereupon, in effect, denied those defendants' motion for leave to renew.

ORDERED that the appeal from so much of the order entered July 12, 2024, as granted that branch of the plaintiff's motion which was for leave to renew its opposition to that branch of the motion of the defendants James Thomas and Delories Thomas which was for leave to renew their opposition to that branch of the plaintiff's prior motion which was to amend the caption and, upon renewal, vacated so much of the order dated February 7, 2023, as granted that branch of those defendants' motion and thereupon, in effect, denied that branch of those defendants' motion is dismissed, as those defendants are not aggrieved by that portion of the order entered July 12, 2024 (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144, 156-157); and it is further,

ORDERED that the order entered July 12, 2024, is modified, on the law, by deleting the provision thereof, upon renewal, vacating so much of the order dated February 7, 2023, as granted that branch of the motion of the defendants James Thomas and Delories Thomas which was for leave to renew their opposition to those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against them, to strike those defendants' answers, and for an order of reference, and thereupon, in effect, denying that branch of those defendants' motion, and substituting therefor a provision, upon renewal, adhering to the [*2]determination in the order dated February 7, 2023, granting that branch of those defendants' motion which was for leave to renew their opposition to those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against them, to strike those defendants' answers, and for an order of reference, and, upon renewal, vacating so much of the order dated January 25, 2022, as granted those branches of the plaintiff's prior motion and thereupon denying those branches of the plaintiff's prior motion; as so modified, the order entered July 12, 2024, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendants James Thomas and Delories Thomas payable by the plaintiff.

In July 2018, the plaintiff commenced this action against, among others, the defendants James Thomas and Delories Thomas (hereinafter together the defendants), inter alia, to foreclose a mortgage. In August 2019, the plaintiff moved for summary judgment on the complaint insofar as asserted against the defendants, to strike the defendants' answers, for an order of reference, and to amend the caption to substitute certain individuals for "John Doe" and "Jane Doe" defendants. The defendants opposed the motion. In an order dated January 25, 2022, the Supreme Court granted the plaintiff's motion.

In June 2022, based upon this Court's decision in Bank of Am., N.A. v Kessler (202 AD3d 10, revd 39 NY3d 317), the defendants moved for leave to renew their opposition to the plaintiff's motion. In an order dated February 7, 2023, the Supreme Court granted renewal and, upon renewal, vacated the order dated January 25, 2022, and thereupon denied the plaintiff's motion.

In June 2023, based upon the Court of Appeals' decision in Bank of Am., N.A. v Kessler (39 NY3d 317), the plaintiff moved for leave to renew its opposition to the defendants' motion. In an order entered July 12, 2024, the Supreme Court granted renewal and, upon renewal, vacated the order dated February 7, 2023, and thereupon, in effect, denied the defendants' motion. The defendants appeal.

At the outset, we dismiss the appeal from so much of the order entered July 12, 2024, as granted that branch of the plaintiff's motion which was for leave to renew its opposition to that branch of the defendants' motion which was for leave to renew their opposition to that branch of the plaintiff's prior motion which was to amend the caption and, upon renewal, vacated so much of the order dated February 7, 2023, as granted that branch of the defendants' motion and thereupon, in effect, denied that branch of the defendants' motion, as the defendants are not aggrieved by that portion of the order entered July 12, 2024 (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144, 156-157).

"'As relevant here, a motion for leave to renew must demonstrate that there has been a change in the law that would change the prior determination'" (Bank of Am., N.A. v Levada, 241 AD3d 1510, 1511, quoting Pryce v Nationstar Mtge., LLC, 224 AD3d 857, 858; see CPLR 2221[e][2]). "'A clarification of the decisional law is a sufficient change in the law to support renewal'" (Bank of Am., N.A. v Levada, 241 AD3d at 1511, quoting U.S. Bank N.A. v Hall-Davis, 232 AD3d 696, 697). Here, the plaintiff demonstrated that there was a change in the law that would have altered the Supreme Court's determination in the order dated February 7, 2023, with respect to the subject portion of that order (see id.). As such, the court properly granted the plaintiff leave to renew based on a change in the law.

However, upon renewal, the Supreme Court should have adhered to the determination in the order dated February 7, 2023, upon renewal, denying those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike the defendants' answers, and for an order of reference. "'A plaintiff demonstrates compliance with RPAPL 1304 through evidence of actual mailing (e.g., an affidavit of mailing or service) or . . . by proof of a sender's routine business practice with respect to the creation, addressing, and mailing of documents of that nature'" (Wells Fargo Bank, N.A. v Kohli, 241 AD3d 1402, 1403, quoting U.S. Bank N.A. v Romano, 231 AD3d 1079, 1080). Here, the plaintiff [*3]demonstrated, prima facie, its compliance with RPAPL 1304 by submitting, among other things, copies of the 90-day notices, copies of certified mail receipts, and an affidavit from its officer. The officer described the plaintiff's standard business practice regarding sending RPAPL 1304 90-day notices to borrowers and the practice and procedure of creating, sending, and maintaining records regarding the notices.

In opposition, the defendants raised a triable issue of fact. On December 20, 2016, the Legislature amended RPAPL 1304 to change the language required in the 90-day notice (see L 2016, ch 73, part Q, § 6 [eff Dec. 20, 2016]; U.S. Bank N.A. v Chrismas-Beck, 219 AD3d 534, 537). The amendment changed the opening language from "YOU COULD LOSE YOUR HOME" to "YOU MAY BE AT RISK OF FORECLOSURE" (L 2016, ch 73, part Q, § 6). The amendment also added the language: "IMPORTANT: You have the right to remain in your home until you receive a court order telling you to leave the property. If a foreclosure action is filed against you in court, you still have the right to remain in the home until a court orders you to leave. You legally remain the owner of and are responsible for the property until the property is sold by you or by order of the court at the conclusion of any foreclosure proceedings. This notice is not an eviction notice, and a foreclosure action has not yet been commenced against you" (id.). This statutory language was in effect at the time this action was commenced, in July 2018 (see L 2018, ch 58, part HH, §§ 1, 6 [eff Apr. 12, 2018, deemed eff Apr. 20, 2017]).

Here, the plaintiff failed to establish that the notice sent to the defendants complied with the statutory language of RPAPL 1304 as it existed at the commencement of the action. Since the notice was sent more than a year and a half prior to the commencement of the action, nothing prevented the plaintiff from sending the defendants a new RPAPL 1304 notice, using the updated language, 90 days prior to commencing the action (see U.S. Bank N.A. v Chrismas-Beck, 219 AD3d at 538). The defendants, therefore, raised a triable issue of fact as to whether the plaintiff strictly complied with RPAPL 1304 as it existed at the time the action was commenced.

Contrary to the plaintiff's contention, the issues raised by the defendants on this appeal—the plaintiff's compliance with the notice provisions of RPAPL 1304 based on first-class certified mail and the absence of language regarding the defendants' right to remain in the home and contact information for the New York State Office of the Attorney General's Homeowner Protection Program—were expressly raised by the defendants in their opposition to the plaintiff's motion for leave to renew, including by incorporating by reference their opposition to the plaintiff's prior motion, inter alia, for summary judgment (see Wells Fargo Bank, N.A. v Kohli, 241 AD3d at 1403). Moreover, while the doctrine of the law of the case precluded the Supreme Court from reconsidering the merits of these issues, this Court is not bound to the doctrine of the law of the case by a prior determination of the Supreme Court (see id.).

The plaintiff's remaining contentions are without merit.

BARROS, J.P., GENOVESI, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court