In closing, the court is constrained to reiterate its view that the inconsistency giving rise to federal preemption herein arises not from the text of RPAPL 1304 but solely from the Second Department's construction of that statute in Kessler and its progeny. (See Bank of N.Y. Mellon v Luria, 75 Misc 3d 1205[A], 2022 NY Slip Op 50384[U].) Sparing the reader the entirety of its opinion in that regard, the court recounts only the following passages from its prior interim order:
"[T]he Kessler majority asserts that the language of the statutory requirement that Section 1304 90-day notices be sent 'in a separate envelope from any other mailing or notice' is 'clear, precise, and unambiguous,' and purports to 'give effect to its plain meaning' in holding that:
"[I]nclusion of any material in the separate envelope sent to the borrower under RPAPL 1304 that is not expressly delineated in these provisions constitutes a violation of the separate envelope requirement of RPAPL 1304(2).
"See, id., 202 AD3d at 12-14 (emphasis added). In so holding, however, the Kessler Court nowhere construes the statutory terms 'other mailing' or 'other notice.' By sleight-of-hand, the Court instead speaks in its holding of the inclusion of other 'material'—which is by no stretch of the imagination the same thing as an 'other' 'mailing' or 'notice.' . . .