Upon the papers submitted (notice of motion with supporting papers, notice of cross motion with supporting papers, affirmation in opposition to the cross motion) it is ORDERED that the motion for summary judgment are granted, and it is further ORDERED that the cross motion for summary judgment is denied, and it is further ORDERED that an order of reference is signed this date. This foreclosure action involves a note in the sum of $45,000.00 delivered to Concord Mortgage Corp, the plaintiff’s predecessor-in-interest, on January 31, 2007 by defendants, Maria M. Rubio and Pascual N. Rubio. As security for the repayment of the note, defendants executed and delivered a mortgage secured by the real property located at 7 Norma Place, Amityville. Several assignments of mortgage was subsequently recorded. The defendants defaulted on the terms of the Note and Mortgage by failing to make the mortgage payment that was due November 1, 2010 and each subsequent payment. The plaintiff commenced this foreclosure action on July 31, 2021 and the defendants timely answered. Presently, the plaintiff has moved for summary judgment on the complaint claiming that it has established the elements of the default and all condition precedent. Defendants has cross moved for summary judgement claiming that the plaintiff failed to comply with RPAPL §§1303 and 1304. The defendants argue that the notice violated the rule of Wells Fargo Bank, N.A. v. Yapkowitz, 199 AD3d 126 [2nd Dept. 2021]). Furthermore, the defendants argue that the inclusion of the Hardship Declaration violated the rule that “inclusion 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)” (Bank of America, N.A. v. Kessler, 202 AD3d 10, 14 [2d Dept 2021], lv. granted __ AD3d __ [May 23, 2022]1; see Wells Fargo Bank, N.A. v. DeFeo, 200 AD3d 1105 [2d Dept, 2021]; Citimortgage, Inc. v. Dente, 200 AD3d 1025 [2d Dept 2021])). Initially, Yapkowitz holds that the mailing to two defendants must be in two separate envelopes. Here the plaintiff established that the notices were mailed in separate envelopes. The defendant claims that the fact that the notices have both names should be a violation of Yapkowitz. However, a reading of Yapkowitz is limited to the mailing methodology required pursuant to RPAPL §1304. Therefore, the defendants’ claim that the plaintiff violated this Second Department precedent must be rejected. Furthermore, as the plaintiff correctly notes, the Emergency Eviction and Foreclosure Prevention Act of 2020 (L2020 ch 381) requires for the hardship declarations to be included “with every notice provided to a mortgagor pursuant to [RPAPL] 1304[.]” In construing this statute, the Court is mindful of the canon that a “ subsequent act in pari materia may be considered as an aid in the construction of an earlier statute or section (Statutes §223; see Deutsche Bank National Trust Company v. Lubonty, __ AD3d __, 2022 WL 2443859 [2nd Dept. July 6, 2022]). Furthermore, a statute should be construed according to its plain meaning (Matter of DaimlerChrysler Corp. v. Spitzer, 7 NY3d 653 [2006]). Here, the plain language of the statute required the Hardship Declaration be included with the RPAPL §1304 notice. Moreover, the statute provides that a court shall not accept for filing any action to foreclose a mortgage unless the foreclosing party or an agent of the foreclosing party files an affidavit, indicating that the Hardship Declaration was provided with the 1304 notice.2 Therefore, reading the statutes in pari materia and its plain unambiguous language, the inclusion of the Hardship Declaration does not violate the strict requirements of Kessler. As the Statement of Material Facts has not be rebutted, as plaintiff argues, the facts are deemed admitted (see 22 NYCRR 202.8-g; Part 27 Rules). Therefore, the plaintiff has established prima facie the mortgage, note and default, against the answering defendants ((Deutsche Bank Natl. Trust Co. v. Abdan, 131 AD3d 1001 [2nd Dept. 2015]). Consequently, the motion for summary judgment is granted and the cross motion is denied. The foregoing constitutes the decision and order of the Court. Dated: August 17, 2022
