As noted above (at 737-738), the pre-eviction notices required by RPAPL 711 are akin in [*14]significant respects to the pre-foreclosure notices required by RPAPL 1304. It has long been settled—by federal and New York state courts—that a debt collector who issues a section 711 pre-eviction notice must comply with the FDCPA, and that RPAPL 711 is preempted to the extent of any inconsistency with the provisions of the FDCPA. (See Romea v Heiberger & Assoc., 163 F3d 111, 118 [2d Cir 1998], supra; Garmus v Borah, Goldstein, Altschuler & Schwartz, P.C., 1999 WL 46682, *3 [SD NY, Feb. 1, 1999, No. 98 CIV. 856 CSH]; Hairston v Whitehorn & Delman, 1998 WL 35112, *3, 1998 US Dist LEXIS 819, *7 [SD NY, Jan. 30, 1998, No. 97 Civ. 3015(JSM)]; Eina Realty v Calixte, 178 Misc 2d 80, 86 [Civ Ct, Kings County 1998]; Finlayson v Yager, 21 Misc 3d 1112[A], 2008 NY Slip Op 52052[U], *1 [Poughkeepsie City Ct 2008].) Recently, a federal district court has concluded that RPAPL 1304 as construed by the Second Department in Kessler conflicts with FDCPA requirements and accordingly declined to follow the Kessler "bright-line" rule. (See CIT Bank, N.A. v Neris, 2022 WL 1799497, *5-6, 2022 US Dist LEXIS 99040, *12-14 [SD NY, June 2, 2022], supra.) For the reasons shown above, this court now holds that insofar as Kessler and its progeny prohibit inclusion of the FDCPA "mini-Miranda" warning and bankruptcy advisory in a section 1304 90-day notice, the rule promulgated by those cases is inconsistent with the provisions of the FDCPA and is preempted by virtue of 15 USC § 1692n.
{**76 Misc 3d at 744}
Conclusion