Preview
FILED: KINGS COUNTY CLERK 02/14/2023 11:13 AM INDEX NO. 520498/2021
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 02/14/2023
SUPREME COURT STATE OF NEW YORK
COUNTY OF KINGS
_______________________________________________X
DEUTSCHE BANK NATIONAL TRUST COMPANY AS
TRUSTEE UNDER THE POOLING AND SERVICING
AGREEMENT RELATED TO IMPAC SECURED ASSETS
CORP., MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-1,
INDEX NO.:520498/2021
Plaintiff,
AFFIRMATION IN SUPPORT
-against-
JAMES FREDERICK, et al.,
Defendants.
______________________________________________X
ANGELYN JOHNSON, Esq., an attorney duly admitted to practice law before the courts of
the State of New York, affirms under penalty of perjury:
1. I am the attorney for JAMES FREDERICK (“Defendant”), defendant herein, and am fully
familiar with the facts and circumstances of this case based upon a review of the file
maintained by my office and communications with Defendants. All matters contained
herein are based information and belief.
2. I submit this affirmation in support of the moving Defendant’s motion under CPLR
3211(a)(1), and RPAPL 1304(2) to dismiss the action for non-compliance with the
statutory condition precedent to a foreclosure action.
3. Plaintiff mailed the COVID hardship declaration notice under The COVID-19
Emergency Eviction and Foreclosure Act of 2020 in the same mailing envelope as the
90 day pre-foreclosure notice under RPAPL which directly violates the statute Exhibit
“A”.
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4. The Court will find that of the 14 pages mailed in the same mailing envelope, pages 3,
and 4 are COVID hardship notices, and as proof that both notices were mailed in the
same mailing envelope the Court will find that the Certified mailing number on the
bottom right corner is the same for both notices.
5. RPAPL 1304(2) specifically mandates that, “Such notice shall be sent by the lender,
assignee or mortgage loan servicer in a separate envelope from any other mailing or
notice”.
6. The additional notice in the same mailing envelope as the 90 day notice is a clear
violation of the statute and renders the mailing non-compliant with the strict mandates
of the statute.
7. The notices sent did not comply with RPAPL§ 1304(2), as to the “form prescribed by
statute”. The Second Department in Wells Fargo Bank v. DeFeo, 200 A.D.3d 1105, (2nd
Dep’t 2021)and Bank of Am., NA v. Kessler, 202 A.D.3d 10 (2nd Dep’t 2021), now make
clear, the Complaint must be dismissed.
PROCEDURAL HISTORY
8. The instant action was commenced by the filing of the Summons, Complaint in the
Kings County Clerk’s Office (NYSEF Doc. “1”).
9. Defendant interposed an Answer (NYSEF Doc. “40”).
10. Plaintiff moved for summary judgment and an Order of Reference [NYCEF Doc. No.
47-67]. Defendant opposed the motion [NYCEF Doc. No. 70-78], and Plaintiff replied
{NYCEF Doc. No. 79-80].
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11. The Court issued an Order granting summary judgment to the Plaintiff [NYCEF Doc. No.
82].
12. Defendant sought to reargue and renew the motion sequence #1[NYCEF Doc. No. 90-
96]. The motion to reargue is currently sub judice.
13. Although the Court found that the Plaintiff had established prima facie entitlement to
judgment, however the defense of failure to comply with RPAPL 1304 is specifically
preserved until the entry of a Judgment of Foreclosure.
14. The Second Department in Bank of Am., NA v. Kessler, 202 A.D.3d 10 (2nd Dep’t 2021),
Wells Fargo Bank v. DeFeo, 200 A.D.3d 1105, (2nd Dep’t 2021), Ocwen Loan Servicing,
LLC v. Sirianni, 202 AD 3d 702 (2nd Dep’t. 2022) are steadfast the Complaint must be
dismissed.
15. The Appellate Division, Second Department has categorically established that any
additional notices, even those regarding standard consumer protection notices
CANNOT be included in the RPAPL 1304 notice envelope, Wells Fargo Bank, NA v.
DeFEO, 2021 N.Y. Slip Op 7577 (App. Div. 2021).
AS FOR NONCOMPLIANCE WITH RPAPL §1304:
ADDITIONAL NOTICES IN THE SAME MAILING ENVELOPE
16. Plaintiff’s RPAPL §1304 Notice, mailed to the Defendants, contain additional notices
in the same mailing envelope. Mailing a §1304 Notice with additional notice is a direct
violation of the statute that renders the Notice noncompliant.
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17. Noncompliance with RPAPL §1304 is a defense to an action that can be raised at any
time until Judgment of Foreclosure is entered Flagstar Bank, FSB v. Damaro, 145 AD.3d
3d 858 ( 2nd Dep’t. 2016), Emigrant Mortgage Co. INC. v. Lifshitz, 143 A.D.3d 755 (2nd
Dep’t. 2016), Failure to show strict compliance with RPAPL §1304 is a basis for dismissal
of a foreclosure action Aurora Loan Services, LLC v. Weisblum, 85 A.D.3d 95 (2nd Dep’t.
2011).
18. An error in an RPAPL §1304 notice is fatal to the action, and if objected to by a
defendant, mandates dismissal, Hudson City Savings Bank v. DePasquale, 113 A.D.3d
595 (2nd Dep’t. 2014). RPAPL §1304(2) prohibits additional notices being mailed along
with the RPAPL §1304 notice. Plaintiff’s RPAPL §1304 notice contains the following
additional notice in the same mailing envelope:
19. The notices mailed to the Defendant Borrowers did not comply with the strict
mandatory precedents of RPAPL 1304 in that there were multiple notices mailed in the
same envelope with the “Help for Homeowners” and housing counseling agencies as
an enclosure.
20. The notice that Plaintiff refers to as its statutory 90-day notice that must strictly comply
with the technical requirements set down by the Legislature including font size,
inclusion of list of housing counseling agencies, and MUST BE MAILED IN A SEPARATE
ENVELOPE FROM ANY OTHER NOTICE.
21. Instead, the Plaintiff decided to include COVID notices in the same mailing envelope.
Therefore, such notices are non-compliant, and the notice sent does not fulfill the
Plaintiff’s obligations under RPAPL 1304.
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FORM PRESCRIBED BY STATUTE
22. RPAPL 1304(2), states in pertinent part:
“Such notice shall be sent by such lender, assignee or mortgage
loan servicer to the borrower, by registered or certified mail and also
by first-class mail to the last known address of the borrower, and if
different, to the residence that is the subject of the mortgage. Such
notice shall be sent by the lender, assignee or mortgage loan
servicer in a separate envelope from any other mailing or notice. “
23. The law is clear, the existence of the additional notices (like the COVID hardship notice
included in the same envelope) invalidated the letter for compliance with RPAPL 1304.
24. Clearly, the notice mailed out by Plaintiff’s servicer did not comply with the statute,
and therefore the failure to strictly comply with the directives of the statute mandate
dismissal of the action.
25. The Appellate Division, Second Department has recently unequivocally ruled that any
additional notices, even those regarding standard consumer protection notices
CANNOT be included in the RPAPL 1304 notice envelope, Wells Fargo Bank v. DeFeo,
200 A.D.3d 1105, (2nd Dep’t 2021).
This strict approach precluding any additional material in the same
envelope as the requisite RPAPL 1304 notices not only comports with
the statutory language, it also provides clarity as a bright-line rule to
plaintiff lenders and "promotes stability and predictability" (Freedom
Mtge. Corp. v Engel, 37 NY3d 1, 20) in foreclosure proceedings Bank
of Am., NA v. Kessler, 2021 N.Y. Slip Op 6979 (App. Div. 2021).
26. The Kessler Court also found that:
“Since, among other requirements, such notice must be sent "in a
separate envelope from any other mailing or notice" (RPAPL
1304[2]), we hold that inclusion of any material in the separate
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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 Am., NA v. Kessler,
202 A.D.3d 10 (2nd Dep’t 2021).
27. Given the Appellate Division’s rulings in Bank of Am., NA v. Kessler, 202 A.D.3d 10 (2nd
Dep’t 2021), Wells Fargo Bank v. DeFeo, 200 A.D.3d 1105, (2nd Dep’t 2021), among
others, which hold that even information regarding HAMP and bankruptcy issues are
considered additional notices) the Legislature and Appellate Courts are
unambiguous, any defect in the notice provided to the homeowner simply invalidates
the notice entirely, and the dismissal of the action is appropriate. The additional
notices contained in the pre-commencement foreclosure 90 day mailing served to
invalidate the mailing from compliance with the statute.
28. The Defendant was not afforded the protections specifically intended by the law.
VACATURE UNDER CPLR 5015(a)(5)
29. Appellate caselaw now makes it clear that Judgment may not be issued in the
absence of a statutorily compliant notice under RPAPL 1304, and the requirement that
it be sent in an envelope separate from any other mailing is inviolate.
30. CPLR 5015 (a) (5), permits a court which rendered an order to relieve a party from the
order where there has been a “reversal, modification or vacatur of a prior judgment
or order upon which it is based”. The law has been modified where the Appellate
Division has now clarified that any additional notices contained in the same mailing
envelope simply invalidate the mailing.
31. A court may review a previously decided matter where there is a need to correct clear
error, National Mortgage Consultants v. Elizaitis, 23 AD 3d 630 (2nd Dep’t 2005).
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32. Prior to Nash v. PORT AUTH. NY & NJ, 22 N.Y.3d 220, 3 N.E.3d 1128, 980 N.Y.S.2d 880
(2013), it was held that CPLR 5015(a)(5) applied only to non-final judgments, however,
the Court of Appeals determined that the legislature envisioned that it should apply to
all matters, even the setting aside of final judgments, Id.
33. Furthermore, there is no time limitation, save that the motion be made in a reasonable
time from the change in existing caselaw. As the matter was stayed during COVID, to
reserve judicial resources, the Defendant waited until Plaintiff proceeded to file the
within application.
“Section 5015 applies not only to judgments that are still in the
appellate process, as in McMahon, but also to those in which
appellate review has been exhausted. Save for the one-year
requirement in section 5015 (a) (1) concerning excusable defaults,
motions made pursuant to paragraphs (2), (3) and (5) contain no
limitation of time, only a requirement that the time within which the
motion is made be "reasonable" (David D. Siegel, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR
C5015:3), Nash Id.
34. Based upon recent case law in Bank of America v.Kessler, 202 A.D.3d 10 (2nd Dep’t
2021), followed by Wells Fargo Bank, N.A. v DeFeo, 200 AD3d 1105 (2d Dept 2021),
Ocwen Loan Servicing, LLC v Sirianni, 2022 NY Slip Op 00677 (2nd Dep’t 2022), this
Court’s prior decision on the issue of Plaintiff’s compliance with RPAPL §1304 should be
reversed, and the Complaint dismissed.
35. Moreover, Court may review its own decision at any time in the interests of justice CPLR
5015(a), See Woodson v. Mendon Leasing, 790 N.E.2d 1156, 100 N.Y.2d 62, 760 N.Y.S.2d
727 (2003), “In addition to the grounds set forth in section 5015(a), a court may vacate
its own judgment for sufficient reason and in the interests of substantial justice”.
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36. The Legislature and Appellate Courts are unambiguous, any violative defect in the
notice provided to the homeowner simply invalidates the notice entirely, and the
dismissal of the action is appropriate.
37. Plaintiff’s failure to send notices under RPAPL 1304 in a separate envelope from any
other mailing requires dismissal.
WHEREFORE, the undersigned prays for an Order dismissing the Complaint under CPLR
3211(a)(1), and RPAPL 1304(2), and for such other relief as the Court deems just.
Dated: Brooklyn, New York
February 14, 2023
________________________________________
Angelyn D. Johnson & Associates LLC
Angelyn D. Johnson, Esq.
Attorney for Defendant James Frederick
26 Court Street, Suite 2610
Brooklyn, NY 11242
(718) 875-2145
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Preview
FILED: KINGS COUNTY CLERK 02/14/2023 11:13 AM INDEX NO. 520498/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 02/14/2023 SUPREME COURT STATE OF NEW YORK COUNTY OF KINGS _______________________________________________X DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT RELATED TO IMPAC SECURED ASSETS CORP., MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-1, INDEX NO.:520498/2021 Plaintiff, AFFIRMATION IN SUPPORT -against- JAMES FREDERICK, et al., Defendants. ______________________________________________X ANGELYN JOHNSON, Esq., an attorney duly admitted to practice law before the courts of the State of New York, affirms under penalty of perjury: 1. I am the attorney for JAMES FREDERICK (“Defendant”), defendant herein, and am fully familiar with the facts and circumstances of this case based upon a review of the file maintained by my office and communications with Defendants. All matters contained herein are based information and belief. 2. I submit this affirmation in support of the moving Defendant’s motion under CPLR 3211(a)(1), and RPAPL 1304(2) to dismiss the action for non-compliance with the statutory condition precedent to a foreclosure action. 3. Plaintiff mailed the COVID hardship declaration notice under The COVID-19 Emergency Eviction and Foreclosure Act of 2020 in the same mailing envelope as the 90 day pre-foreclosure notice under RPAPL which directly violates the statute Exhibit “A”. 1 of 8 FILED: KINGS COUNTY CLERK 02/14/2023 11:13 AM INDEX NO. 520498/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 02/14/2023 4. The Court will find that of the 14 pages mailed in the same mailing envelope, pages 3, and 4 are COVID hardship notices, and as proof that both notices were mailed in the same mailing envelope the Court will find that the Certified mailing number on the bottom right corner is the same for both notices. 5. RPAPL 1304(2) specifically mandates that, “Such notice shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice”. 6. The additional notice in the same mailing envelope as the 90 day notice is a clear violation of the statute and renders the mailing non-compliant with the strict mandates of the statute. 7. The notices sent did not comply with RPAPL§ 1304(2), as to the “form prescribed by statute”. The Second Department in Wells Fargo Bank v. DeFeo, 200 A.D.3d 1105, (2nd Dep’t 2021)and Bank of Am., NA v. Kessler, 202 A.D.3d 10 (2nd Dep’t 2021), now make clear, the Complaint must be dismissed. PROCEDURAL HISTORY 8. The instant action was commenced by the filing of the Summons, Complaint in the Kings County Clerk’s Office (NYSEF Doc. “1”). 9. Defendant interposed an Answer (NYSEF Doc. “40”). 10. Plaintiff moved for summary judgment and an Order of Reference [NYCEF Doc. No. 47-67]. Defendant opposed the motion [NYCEF Doc. No. 70-78], and Plaintiff replied {NYCEF Doc. No. 79-80]. 2 of 8 FILED: KINGS COUNTY CLERK 02/14/2023 11:13 AM INDEX NO. 520498/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 02/14/2023 11. The Court issued an Order granting summary judgment to the Plaintiff [NYCEF Doc. No. 82]. 12. Defendant sought to reargue and renew the motion sequence #1[NYCEF Doc. No. 90- 96]. The motion to reargue is currently sub judice. 13. Although the Court found that the Plaintiff had established prima facie entitlement to judgment, however the defense of failure to comply with RPAPL 1304 is specifically preserved until the entry of a Judgment of Foreclosure. 14. The Second Department in Bank of Am., NA v. Kessler, 202 A.D.3d 10 (2nd Dep’t 2021), Wells Fargo Bank v. DeFeo, 200 A.D.3d 1105, (2nd Dep’t 2021), Ocwen Loan Servicing, LLC v. Sirianni, 202 AD 3d 702 (2nd Dep’t. 2022) are steadfast the Complaint must be dismissed. 15. The Appellate Division, Second Department has categorically established that any additional notices, even those regarding standard consumer protection notices CANNOT be included in the RPAPL 1304 notice envelope, Wells Fargo Bank, NA v. DeFEO, 2021 N.Y. Slip Op 7577 (App. Div. 2021). AS FOR NONCOMPLIANCE WITH RPAPL §1304: ADDITIONAL NOTICES IN THE SAME MAILING ENVELOPE 16. Plaintiff’s RPAPL §1304 Notice, mailed to the Defendants, contain additional notices in the same mailing envelope. Mailing a §1304 Notice with additional notice is a direct violation of the statute that renders the Notice noncompliant. 3 of 8 FILED: KINGS COUNTY CLERK 02/14/2023 11:13 AM INDEX NO. 520498/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 02/14/2023 17. Noncompliance with RPAPL §1304 is a defense to an action that can be raised at any time until Judgment of Foreclosure is entered Flagstar Bank, FSB v. Damaro, 145 AD.3d 3d 858 ( 2nd Dep’t. 2016), Emigrant Mortgage Co. INC. v. Lifshitz, 143 A.D.3d 755 (2nd Dep’t. 2016), Failure to show strict compliance with RPAPL §1304 is a basis for dismissal of a foreclosure action Aurora Loan Services, LLC v. Weisblum, 85 A.D.3d 95 (2nd Dep’t. 2011). 18. An error in an RPAPL §1304 notice is fatal to the action, and if objected to by a defendant, mandates dismissal, Hudson City Savings Bank v. DePasquale, 113 A.D.3d 595 (2nd Dep’t. 2014). RPAPL §1304(2) prohibits additional notices being mailed along with the RPAPL §1304 notice. Plaintiff’s RPAPL §1304 notice contains the following additional notice in the same mailing envelope: 19. The notices mailed to the Defendant Borrowers did not comply with the strict mandatory precedents of RPAPL 1304 in that there were multiple notices mailed in the same envelope with the “Help for Homeowners” and housing counseling agencies as an enclosure. 20. The notice that Plaintiff refers to as its statutory 90-day notice that must strictly comply with the technical requirements set down by the Legislature including font size, inclusion of list of housing counseling agencies, and MUST BE MAILED IN A SEPARATE ENVELOPE FROM ANY OTHER NOTICE. 21. Instead, the Plaintiff decided to include COVID notices in the same mailing envelope. Therefore, such notices are non-compliant, and the notice sent does not fulfill the Plaintiff’s obligations under RPAPL 1304. 4 of 8 FILED: KINGS COUNTY CLERK 02/14/2023 11:13 AM INDEX NO. 520498/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 02/14/2023 FORM PRESCRIBED BY STATUTE 22. RPAPL 1304(2), states in pertinent part: “Such notice shall be sent by such lender, assignee or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and if different, to the residence that is the subject of the mortgage. Such notice shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice. “ 23. The law is clear, the existence of the additional notices (like the COVID hardship notice included in the same envelope) invalidated the letter for compliance with RPAPL 1304. 24. Clearly, the notice mailed out by Plaintiff’s servicer did not comply with the statute, and therefore the failure to strictly comply with the directives of the statute mandate dismissal of the action. 25. The Appellate Division, Second Department has recently unequivocally ruled that any additional notices, even those regarding standard consumer protection notices CANNOT be included in the RPAPL 1304 notice envelope, Wells Fargo Bank v. DeFeo, 200 A.D.3d 1105, (2nd Dep’t 2021). This strict approach precluding any additional material in the same envelope as the requisite RPAPL 1304 notices not only comports with the statutory language, it also provides clarity as a bright-line rule to plaintiff lenders and "promotes stability and predictability" (Freedom Mtge. Corp. v Engel, 37 NY3d 1, 20) in foreclosure proceedings Bank of Am., NA v. Kessler, 2021 N.Y. Slip Op 6979 (App. Div. 2021). 26. The Kessler Court also found that: “Since, among other requirements, such notice must be sent "in a separate envelope from any other mailing or notice" (RPAPL 1304[2]), we hold that inclusion of any material in the separate 5 of 8 FILED: KINGS COUNTY CLERK 02/14/2023 11:13 AM INDEX NO. 520498/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 02/14/2023 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 Am., NA v. Kessler, 202 A.D.3d 10 (2nd Dep’t 2021). 27. Given the Appellate Division’s rulings in Bank of Am., NA v. Kessler, 202 A.D.3d 10 (2nd Dep’t 2021), Wells Fargo Bank v. DeFeo, 200 A.D.3d 1105, (2nd Dep’t 2021), among others, which hold that even information regarding HAMP and bankruptcy issues are considered additional notices) the Legislature and Appellate Courts are unambiguous, any defect in the notice provided to the homeowner simply invalidates the notice entirely, and the dismissal of the action is appropriate. The additional notices contained in the pre-commencement foreclosure 90 day mailing served to invalidate the mailing from compliance with the statute. 28. The Defendant was not afforded the protections specifically intended by the law. VACATURE UNDER CPLR 5015(a)(5) 29. Appellate caselaw now makes it clear that Judgment may not be issued in the absence of a statutorily compliant notice under RPAPL 1304, and the requirement that it be sent in an envelope separate from any other mailing is inviolate. 30. CPLR 5015 (a) (5), permits a court which rendered an order to relieve a party from the order where there has been a “reversal, modification or vacatur of a prior judgment or order upon which it is based”. The law has been modified where the Appellate Division has now clarified that any additional notices contained in the same mailing envelope simply invalidate the mailing. 31. A court may review a previously decided matter where there is a need to correct clear error, National Mortgage Consultants v. Elizaitis, 23 AD 3d 630 (2nd Dep’t 2005). 6 of 8 FILED: KINGS COUNTY CLERK 02/14/2023 11:13 AM INDEX NO. 520498/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 02/14/2023 32. Prior to Nash v. PORT AUTH. NY & NJ, 22 N.Y.3d 220, 3 N.E.3d 1128, 980 N.Y.S.2d 880 (2013), it was held that CPLR 5015(a)(5) applied only to non-final judgments, however, the Court of Appeals determined that the legislature envisioned that it should apply to all matters, even the setting aside of final judgments, Id. 33. Furthermore, there is no time limitation, save that the motion be made in a reasonable time from the change in existing caselaw. As the matter was stayed during COVID, to reserve judicial resources, the Defendant waited until Plaintiff proceeded to file the within application. “Section 5015 applies not only to judgments that are still in the appellate process, as in McMahon, but also to those in which appellate review has been exhausted. Save for the one-year requirement in section 5015 (a) (1) concerning excusable defaults, motions made pursuant to paragraphs (2), (3) and (5) contain no limitation of time, only a requirement that the time within which the motion is made be "reasonable" (David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:3), Nash Id. 34. Based upon recent case law in Bank of America v.Kessler, 202 A.D.3d 10 (2nd Dep’t 2021), followed by Wells Fargo Bank, N.A. v DeFeo, 200 AD3d 1105 (2d Dept 2021), Ocwen Loan Servicing, LLC v Sirianni, 2022 NY Slip Op 00677 (2nd Dep’t 2022), this Court’s prior decision on the issue of Plaintiff’s compliance with RPAPL §1304 should be reversed, and the Complaint dismissed. 35. Moreover, Court may review its own decision at any time in the interests of justice CPLR 5015(a), See Woodson v. Mendon Leasing, 790 N.E.2d 1156, 100 N.Y.2d 62, 760 N.Y.S.2d 727 (2003), “In addition to the grounds set forth in section 5015(a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice”. 7 of 8 FILED: KINGS COUNTY CLERK 02/14/2023 11:13 AM INDEX NO. 520498/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 02/14/2023 36. The Legislature and Appellate Courts are unambiguous, any violative defect in the notice provided to the homeowner simply invalidates the notice entirely, and the dismissal of the action is appropriate. 37. Plaintiff’s failure to send notices under RPAPL 1304 in a separate envelope from any other mailing requires dismissal. WHEREFORE, the undersigned prays for an Order dismissing the Complaint under CPLR 3211(a)(1), and RPAPL 1304(2), and for such other relief as the Court deems just. Dated: Brooklyn, New York February 14, 2023 ________________________________________ Angelyn D. Johnson & Associates LLC Angelyn D. Johnson, Esq. Attorney for Defendant James Frederick 26 Court Street, Suite 2610 Brooklyn, NY 11242 (718) 875-2145 8 of 8