"Applying § 1304 as written, the question posed would be whether the FDCPA advisory constituted an 'other mailing' or 'other notice' within the meaning of the statute. To this Court the answer is quite evidently 'No': by its very nature an FDCPA advisory is not an 'other notice'; it is, rather, wholly ancillary to the notice to which it is appended, functioning as a qualifier or disclaimer, which would never be independently given or 'mail[ed]' in a 'separate envelope.' " (Bank of N.Y. Mellon v Luria, 75 Misc 3d 1205[A], 2022 NY Slip Op 50384[U], *2, *5.)
Regardless, since RPAPL 1304 as construed by the Second Department in Kessler and [*15]its progeny is preempted by the FDCPA, defendant may not rely on that authority as grounds for asserting that plaintiff failed to satisfy the section 1304{**76 Misc 3d at 745} condition precedent to its prosecution of this mortgage foreclosure action. Consequently, defendant's motion for renewal is denied.
It is therefore ordered that defendant's motion for renewal of this court's prior decision and order awarding plaintiff summary judgment of foreclosure is denied.
Footnotes
Footnote 1:To the same effect are US Bank N.A. v Lanzetta (207 AD3d 501 [2d Dept 2022]) and Citimortgage, Inc. v Dente (200 AD3d 1025 [2d Dept 2021]).