On April 20, 2022, the Appellate Division, Second Department answered the open question of whether an alleged inaccuracy in the default amount provided in an RPAPL 1304 90-day notice represents a lack of strict compliance with the requirements of the statute in the negative. Keeping true to precedent, the Appellate Division determined that "strict compliance with RPAPL 1304 is satisfied so long as the duration and an amount of the default is contained in the notice, and that any continuing dispute as to the specific amount is an issue that must await the parties' later litigation." The Appellate Division's decision is a welcome relief to lenders that no longer need to fear that an alleged inaccuracy in the amount due provided in 90-day notice will result in dismissal. Perhaps more importantly, the decision may portend a deterioration of the strict compliance standard annunciated by the Second Department in Bank of America v. Kessler.

In Emigrant Bank v. Cohen, 2022 NY Slip Op 02532, the plaintiff lender commenced a foreclosure action against, among others, the defendant homeowner/borrower. The borrower answered the complaint asserting several affirmative defenses and counterclaims, including defenses based on the plaintiff's alleged noncompliance with RPAPL 1304 and lack of standing. The lender moved for summary judgment, which the borrower opposed arguing, among other things, that the lender failed to strictly comply with RPAPL 1304 and to demonstrate standing. In reply, the plaintiff submitted a supplemental affidavit, which included new documentary evidence substantiating its standing. The lower court granted plaintiff's motion and the borrower appealed.

On appeal, the borrower reiterated his standing argument and argued that the lender failed to demonstrate strict compliance with RPAPL 1304 by failing to demonstrate compliance with the statute's mailing procedures and by providing an allegedly erroneous default amount in the 90-day notice.