LLC v. ET AL (2026)

Introduction

The court ordered Petitioner and Petitioner's counsel, Green & Cohen PC, to show cause why the court should not impose rule 130-1.1 sanctions for prosecuting a groundless eviction proceeding. After a hearing, the court imposes sanctions on both, each in the amount of $4,500.00.

Facts

Petitioner filed two consecutive holdover summary eviction petitions, each alleging that Respondent had failed to sign the rent-stabilized renewal lease that they had been offered. The first, index number 325586/25, was made returnable on January 22, 2026. On that day, Petitioner filed a notice of discontinuance, which noted that "Respondent has signed lease" (NYSCEF Doc. 5).

Three days earlier, Petitioner had filed the second petition, index number 301878/26. This petition was based on allegations identical to those in the first petition, but according to Petitioner was necessitated by defects contained in the first petition.

The initial return date for the first petition was not assigned until February 3rd. The date assigned was May 6th (NYSCEF Doc. 3). Because RPAPL § 733 requires the petition to be served between ten and seventeen days prior to the return date, Petitioner did not serve the second petition until late-April 2026 (NYSCEF Doc. 4).

On May 6th, the proceeding was adjourned to June 22nd, without Petitioner notifying the court that the lease at issue had already been signed. On June 22nd, six months after its cause of action was nullified by the lease signing, Petitioner filed a notice of discontinuance.

On its own motion, the court directed Petitioner and Petitioner's counsel to show cause "why the court should not impose sanctions pursuant to section 130-1.1 of the Rules of the Chief Administrator for frivolous conduct, to wit: serving a notice of petition and petition based on a claim that had been resolved three months earlier, and failing to discontinue the proceeding on the first court appearance (cf. 13 E. 124 LLC v J&M Realty Servs. Corp., 222 AD3d 446 [1st Dept 2023])" (NYSCEF Doc. 7).

Discussion

Rule 130-1.1

Section 130-1.1 of the Rules of the Chief Administrator authorizes the court to award costs or impose financial sanctions against a party for frivolous conduct (Rules of the Chief Admr of Cts [22 NYCRR] § 130-1.1). Frivolous conduct includes that which is "completely without merit in law," is undertaken to prolong ligation or "harass or maliciously injure another," or "asserts material factual statements that are false" (id.). "In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party" (id.).

"Sanctions are retributive, in that they punish past conduct. They are also goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large" (Levy v Carol Mgt. Corp., 260 AD2d 27, 34 [1st Dept 1999]). "The intent of [sanctions] is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics" (Matter of Kernisan v Taylor, 171 AD2d 869, 870 [2d Dept 1991]). "Relitigating already-decided matters is sanctionable, as is imposing on the judicial system an unnecessary burden" (Matter of Hoppenstein, 209 AD3d 492 [2d Dept 2022] [internal citations omitted]).

Parties and attorneys have been sanctioned for conduct as varied as continuing to pursue claims that the tenant defaulted under their lease "well after it was apparent or should have been apparent that those claims lacked merit" (Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD3d 1008, 1009 [2d Dept 2010]); for commencing a foreclosure action without leave where a judgment of foreclosure had already been issued in a prior action (Private Capital Group LLC v Connor, 242 AD3d 1236 [2d Dept 2025]); for maintaining an action after the defendant asserted a valid jurisdictional objection (Viacom, Inc. v Silverwood Dev., 188 AD2d 1057 [4th Dept 1992]); for a frivolous appeal (Bell v State of New York, 96 NY2d 811 [2001]); and for interruptive, insulting, and meritless behavior at a deposition (Cadlerock Joint Venture, L.P. v Sol Greenberg & Sons Intl., Inc., 94 AD3d 580 [1st Dept 2012]).

Petitioner's/Counsel's defense

Petitioner's counsel, but not a representative from Petitioner, appeared at the hearing. The court offered Petitioner and counsel an opportunity to supplement the record with a written submission, which was declined. Counsel apologized, but there was little provided in terms of an explanation or defense. Essentially, counsel suggested that once a return date is assigned the pleadings are forwarded to a process server, and at that point neither Petitioner nor counsel are involved. That is, once the pleadings are forwarded to the process server, the process server will serve them in a timely manner, without input from Petitioner or their attorney. Counsel also stated that because the first appearance on May 6th was scheduled for "intake" and the case was automatically adjourned in accordance with the Brookyln Housing Court "pilot program" protocols, there was no opportunity to resolve the case. However, the constraints of the pilot program do not relieve counsel of the duty to discontinue a proceeding that they know lacks a legal and factual basis. They remained free to file a written notice of discontinuance at any time.

Overall, the apology notwithstanding, the general thrust of the defense was that what had happened was, while regrettable, all but unavoidable and ultimately harmless.

Frivolous conduct

The court finds that the conduct of Petitioner and counsel in serving the pleadings and failing to discontinue on the first appearance, is frivolous within the meaning of section 130-1.1. This determination does not rest on a finding of subjective bad faith. Rule 130-1.1 permits sanctions where conduct is objectively frivolous, regardless of intent.

Counsel's explanation was neither exculpatory nor mitigating. The facts belie the accuracy of their proffered timeline. Petitioner acknowledged that it had received a signed copy of the lease on January 22nd. From that date forward, based on the record before the court, no reasonable attorney could believe that a holdover eviction proceeding premised on a failure to renew remained viable. The ensuing three months were more than enough time to determine that the second petition should not be served.

Additionally, even had the pleadings been provided to the process server before the first case was discontinued, that does not absolve Petitioner or counsel. They still retain responsibility for determining whether the pleadings should be served, even after the pleadings are given to the process server.

Petitioner and counsel had multiple opportunities to cease their prosecution of the case. The first opportunity was on January 22nd, the initial return date of the first case, when they acknowledged that Respondent signed the renewal lease. At that point the second petition should have been withdrawn. The second opportunity was on February 3rd, when the May 6th return date was assigned for the second petition. At that point it was incumbent on Petitioner and counsel to consult their record and confer to confirm whether there was still a valid cause of action. This did not occur, which is known because the pleadings were ultimately forwarded to the process server for service. The third opportunity was during the period of time between assignment of the return date on February 3rd and service of the pleadings in late April. At any point during that time Petitioner and counsel should have known that the petition no longer pleaded a cause of action. The fourth opportunity was prior to May 6th, the first court appearance. The fifth opportunity was at any time prior to the second court appearance on June 22nd.

This was not a one-off clerical slip; it was a series of missed steps at multiple stages of the proceeding, any one of which should have prompted Petitioner or counsel to stop the case.

Although counsel offered an apology, which has not gone unconsidered, the substance of the explanation amounted to the assertion that such errors are a natural and acceptable byproduct of Housing Court practice. The court rejects that premise. To be sure, certain practitioners operate high-volume calendars, which increases the risk of mistakes like the one here. Volume alone is not improper; however, high-volume practice does not diminish counsel's obligation to ensure that filings always retain a legal and factual basis. This obligation exists regardless of a practitioner's workload and is fundamental to the fair administration of civil proceedings. Over the past eleven years, this court has observed numerous instances in which tenants were brought into court based on filings or motions later deemed inadvertent. Too often, landlords treated the absence of an eviction as proof that no harm had occurred, and meaningful apologies were rare.

Even absent physical eviction, requiring a respondent to defend a baseless petition imposes tangible burdens, including time away from work, expenses, and exposure to the stress inherent in an eviction proceeding. These harms are neither trivial nor unavoidable. While counsel's apology here is noted, an apology does not remedy the burdens imposed on Respondent or the waste of judicial resources. Nor does it obviate the need for deterrence.

The lack of meaningful deterrence contributes to the persistence of these avoidable errors. In imposing sanctions here, the court aims not only to address the conduct of Petitioner and its counsel, but also the conduct of other denizens of Housing Court (see Levy, 260 AD2d at 34; see also 60 Rogers Ave LLC v Blissett, 89 Misc 3d 1214[A], 2026 NY Slip Op 50936[U] [Civ Ct, Kings County 2026] [sanctioning counsel $4,500.00 for filing a frivolous motion]; 201 Linden Blvd. Partners LLC v Shaw, 88 Misc 3d 1230[A], 2026 NY Slip Op 50280[U] [Civ Ct, Kings County 2026] [sanctioning petitioner $10,000.00 for multiple frivolous cases])).

Conclusion

The court therefore imposes a sanction of $4,500.00 on the firm Green & Cohen PC and $4,500.00 on Petitioner Essex Package Realty LLC for engaging in frivolous conduct. Regarding counsel, a penalty of $4,500.00 is warranted 1) to deter counsel from undertaking similar conduct in the future and to incentivize them to take the necessary steps to prevent it; 2) to punish counsel for wasting judicial resources and haling Respondent needlessly into court; and 3) because of the multiple opportunities there were to avoid haling Respondent into court. As to Petitioner, a penalty of $4,500.00 is warranted for continuing to prosecute a petition that no longer had merit and because it is ultimately responsible for the actions of its attorneys.

Accordingly, it is ORDERED that Green & Cohen PC shall deposit $4,500.00 with the Lawyers' Fund for Client Protection (see Rules of the Chief Admr of Cts § 130-1.3); and it is further

ORDERED that Green & Cohen PC shall transmit a copy of this decision to the Lawyers' Fund for Client Protection and to Respondent within 20 days of this decision's upload to NYSCEF, with proof thereof filed within 5 days thereafter; and it is further

ORDERED Petitioner shall deposit $4,500.00 with the clerk of the court for transmittal to the Commissioner of Taxation and Finance (see Rules of the Chief Admr of Cts § 130-1.3); and it is further

ORDERED that both deposits shall be made within 20 days of this decision's upload to NYSCEF, with proof thereof filed within 5 days thereafter.

This is the court's decision and order.

Dated: August 4, 2026

Michael L. Weisberg, JHC

Michael L. Weisberg, J.