Hoffman & Hoffman LLC v Smith

Supreme Court, Kings County

Decided on April 6, 2026

Index No. 512550/2023

Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on November 18, 2025, under motion sequence number four, by Zamari Smith (hereinafter defendant) for an order (1) pursuant to CPLR 3211 dismissing the instant matter on the grounds that Hoffman & Hoffman LLC (hereinafter plaintiff) lacks a cause of action, or (2) [*2]in the alternative, pursuant to CPLR 3212 granting summary judgment in favor of the defendant, as there are no material facts in dispute, or (3) in the alternative, extending the time for the defendant to comply with this Court's scheduling order dated January 31, 2024. The motion is opposed by cross-motion under motion sequence number five.

-Notice of motion

-Affirmation in support by counsel

-Affidavit in support by defendant Zamari Smith

Exhibits 1-5

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross-motion filed on January 8, 2026, under motion sequence number five, by Hoffman & Hoffman LLC (hereinafter plaintiff) for an order pursuant to Real Property Law § 220, granting plaintiff reasonable compensation for the use and occupancy by defendant of apartment 402 in the building at a certain address in Brooklyn, NY, for the period of December 2018 through January 2026, in the amount of $220,019.94, and pendente lite for each month on the first day of each month at the monthly rate of $2,860.00, pending the outcome of the case at bar. The motion is unopposed.

-Notice of cross-motion

-Affirmation in support of cross-motion^FN1 by Joe Milstein

-Affirmation in support of cross-motion^FN2 by counsel

Exhibit A-G

-Memorandum of law in support of cross-motion^FN3

Recitation in accordance with CPLR 2219 (a) of the papers considered on the order to show cause, filed on January 13, 2026, under motion sequence number six, by Communities Resist, counsel for defendant Zamari Smith, for an order (1) pursuant to rule 1.16 of the New York Rules of Professional Conduct and CPLR 321 (b) granting leave to withdraw as counsel, and (2) pursuant to CPLR 321 (c) granting an adjournment of not less than 30 days to enable the defendant to obtain counsel. The motion is opposed

-Order to show cause

-Affirmation in support by Samuel Chiera

-Supplemental affirmation in support by Samuel Chiera

-Affidavit in opposition by defendant Zamari Smith

BACKGROUND

On April 27th, 2023, the plaintiff Hoffman & Hoffman LLC commenced the instant action by filing a summons verified complaint with the Kings County Clerk's office (KCCO).

On August 9th 2023 the plaintiff filed a motion under sequence one seeking an order pursuant to CPLR 3025 (c), deeming plaintiff's summons and verified complaint, verified on April 26, 2023 (hereinafter the complaint), amended as to plaintiff's first and second causes of action therein to conform to the evidence submitted in this motion so as to include all additional unpaid rent and/or use and occupancy incurred between the period of May 1, 2023 through August 1, 2023, in the sum certain amount of $11,440.00 (hereinafter additional arrears), in addition to and notwithstanding the sum certain amount of $104,491.37 (the arrears) for which defendant Zamari Smith is liable under plaintiff's first cause of action in the complaint through April 30, 2023.

On August 17, 2023, the defendant filed an answer with counterclaims with the KCCO.

On November 5, 2023, the defendant filed a motion under sequence number two seeking an order: (1) pursuant to CPLR 3012 (d), granting defendant Zamari Smith leave to serve and file a late answer in the instant action, (2) pursuant to CPLR 3212, staying the instant action pending the resolution of a parallel and previously-commenced action in this Court under index no. 632/2022 and a loft proceeding currently pending before the Loft Board under Docket No. TR-1743.

On November 28, 2023, motion sequence one and motion sequence two were both marked off for failure to appear for all arguments on the motions.

On February 28, 2025, the plaintiff filed a motion under sequence three seeking an order restoring the action to active pre-note of issue status in the courts' case management system.

In support of motion sequence number three, plaintiff's counsel averred the following:

"On January 29, 2024, the parties appeared for a Preliminary Conference and entered into a Case Scheduling Order, which was entered in the Court on January 31, 2024 (NYSCEF Doc. No. 26), a copy of which is annexed hereto at Exhibit "C."

The parties were scheduled to appear in the Central Compliance Part for a compliance conference on May 2, 2024. However, due to a miscommunication between the undersigned office and opposing counsel regarding coverage of the compliance conference in this case and a related action involving the same parties entitled 252 Norman Avenue Tenant Association, et ano v. Hoffman, Supreme Court, Kings County, index no. 632/2022 (hereinafter the related action), both offices mistakenly neglected to appear for the compliance conference, and the matter was marked off/administratively dismissed under the e-Courts notation "NAES," or "No Appearance Either Side." However, the Court did not issue a formal order dismissing the complaint pursuant to 22 NYCRR. § 202.27.

By order dated August 8, 2025, the Court decided motion sequence number three as follows:

"Plaintiff's motion to restore (Seq. 3) is granted (see Lopez v. Imperial Delivery Serv., 282 AD2d 190, 199 [2d Dept 2001]) Case restored to active status. The parties are directed to appear for an in person compliance conference on 11/19/25. Time to file the [*3]note of issue is extended to 3/27/26. Any other relief requested is denied at this time."

LAW AND APPLICATION

Ambiguities Regarding Relief Sought

The Court is left with certain ambiguities with the relief sought by the parties.

The plaintiff originally sought under motion sequence one an order granting leave to amend the complaint followed by an order granting a default judgment against the defendant on the complaint as amended. On August 17, 2023, the defendant filed an answer with counterclaims. Thereafter, over two months later, on November 5, 2023, the defendant cross-moved under motion sequence number two, for, among other things, an order granting the defendant leave to serve and file a late answer. On November 28, 2023, both motion sequence number one and two were marked off for non-appearance.

The following questions are raised by the fact that the court never decided the plaintiff's motion to amend the complaint and the defendant's cross-motion for, among other things, an order granting the defendant leave to serve and file a late answer: Did the plaintiff, in effect, abandon the motion to amend the complaint and to obtain a default judgment against the defendant? By the marking off of the two motions, is the plaintiff in effect accepting the defendant's answer? Is the defendant seeking to dismiss the originally filed verified complaint or the amended complaint sought by the plaintiff?

The Court does not reach these issues in the instant decision for the reasons set forth below.

Defendant's Motion for Dismissal and for Summary Judgment, Under Motion Sequence Number Four

Assuming that the defendant is seeking to dismiss the original verified complaint pursuant to CPLR 3211 (a) (7), it is noted that the motion is supported by the purported affirmation of John Francis Esq. and the affidavit of the defendant.

"Effective January 1, 2024, CPLR 2016 was revised, and provides that '[t]he statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially in the following form: I affirm this ___ day of ___, ___, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.'" (Ajax Mtge. Loan Trust 2021-G, Mortgagebacked Sec., Series 2021-G by U.S. Bank N.A. v Loretoni, 87 Misc 3d 1213[A], 2025 NY Slip Op 51560[U], *1 [Sup Ct, Westchester County 2025]).

As is evident, this requirement applies to attorney affirmations. Here, the affirmation in support of the motion submitted by counsel John Frances is inadmissible as it does not contain the specific language required by CPLR 2106 as amended (see Ajax Mtge. Loan Trust 2021-G, Mortgagebacked Sec., Series 2021-G by U.S. Bank N.A. v Loretoni, 87 Misc 3d 1213[A], 2025 NY Slip Op 51560[U], *1 [Sup Ct, Westchester County 2025], citing Kallo v Kane Street Synagogue, 241 AD3d 522, 523-524 [2d Dept 2025]).

Inasmuch as the defective affirmation was used to admit documents and contained the argument of counsel, the motion is rendered unsupported. The affidavit of the defendant does not remedy the defect.

The defective affirmation is also submitted in support of the defendant's motion for summary judgment. The motion for summary judgment is also unsupported for the same reason. Moreover, the defendant's answer asserted counterclaims and there is no evidence that the plaintiff replied to the counterclaims. Consequently, the motion as far as it sought summary judgment was therefore premature (see CPLR 3212 [a]; see Pearl Street Parking Associates LLC v City of Buffalo, 277 AD3d 1471, 1472 [4th Dept 2024]).

The defendant may file superseding motion on or before May 19, 2026, for the relief sought under motion sequence number four, by submitting proper papers correcting, inter alia the CPLR 2106 defect.

The motion is returnable for oral argument on June 11, 2026.

Defendant's Counsel's Order to Show Cause to be Relieved as Counsel, Under Motion Sequence Number Six

By order to show cause, Communities Resist, counsel for defendant Zamari Smith sought an order (1) pursuant to rule 1.16 of the New York Rules of Professional Conduct and CPLR 321 (b) granting leave to withdraw as counsel, and (2) pursuant to CPLR 321 (c) granting an adjournment of not less than thirty days to enable the defendant to obtain counsel.

It is noted that the order to show cause is supported by a purported affirmation of Samuel H. Chiera, Esq. Here too, the affirmation in support of the motion submitted by Samuel H. Chiera, Esq. is inadmissible as it also does not contain the specific language required by CPLR 2106.

Furthermore, a motion to be relieved as counsel usually contains a request for a temporary restraining order pending resolution of the motion. Although the movant requested a thirty-day adjournment for the defendant to obtain new counsel, it did not operate as a stay. To the extent that the movant assumed it was a stay, the Court here clarifies that it was not.

The movant may file a superseding motion on or before May 19, 2026, for the relief sought under motion sequence number six by submitting proper papers correcting the CPLR 2106 defect.

The motion is returnable for oral argument on June 11, 2026.

Plaintiff's Motion for Reasonable Compensation for Use and Occupancy, Under Motion Sequence Number Five

The plaintiff has cross-moved for an order pursuant to Real Property Law § 220, granting plaintiff reasonable compensation for the use and occupancy by defendant of apartment 402 in the building at a certain address in Brooklyn, NY, and pendente lite relief for each month on the first day of each month at the monthly rate of $2,860.00, pending the outcome of the case at bar. The motion was unopposed.

As discussed above with respect to defendant's counsel's order to show cause to be relieved, under motion sequence number six, the order to show cause did not stay this motion.

To the extent that defendant wishes to oppose the motion under motion sequence number [*4]five, the defendant may file on or before May 19, 2026 opposition to the plaintiff's cross-motion. The plaintiff may reply to the opposition on or before June 2, 2026.

The motion is returnable for oral argument on June 11, 2026.

CONCLUSION

The motion under motion sequence number four by Zamari Smith for an order (1) pursuant to CPLR 3211 dismissing the instant matter on the grounds that Hoffman & Hoffman LLC (hereinafter plaintiff) lacks a cause of action, or (2) in the alternative, pursuant to CPLR 3212 granting summary judgment in favor of the defendant, as there are no material facts in dispute, or (3) in the alternative, extending the time for the defendant to comply with this Court's scheduling order dated January 31, 2024 is adjourned to June 11, 2026. The defendant may file a superseding motion on or before May 19, 2026, for the relief sought under motion sequence number four by submitting proper papers correcting, inter alia, the CPLR 2106 defect.

The cross-motion by plaintiff for an order pursuant to Real Property Law § 220, granting plaintiff reasonable compensation for the use and occupancy by defendant of apartment 402 in the building at a certain address in Brooklyn, New York 11222, for the period of December 2018 through January 2026, in the amount of $220,019.94, and pendente lite for each month on the first day of each month at the monthly rate of $2,860.00, pending the outcome of the case at bar is returnable for oral argument on June 11, 2026 with the following briefing schedule. To the extent that defendant wishes to oppose the motion under motion sequence number five, the defendant may file on or before May 19, 2026 opposition to the plaintiff's cross-motion. The plaintiff may reply to the opposition on or before June 2, 2026.

The order to show cause, under motion sequence number six, by Communities Resist, counsel for defendant Zamari Smith seeking an order (1) pursuant to rule 1.16 of the New York Rules of Professional Conduct and CPLR 321 (b) granting leave to withdraw as counsel, and (2) pursuant to CPLR 321 (c) granting an adjournment of not less than thirty days to enable the defendant to obtain counsel is adjourned to June 11, 2026. The movant may file a superseding order to show cause to be relieved as counsel on or before May 19, 2026, for the relief sought under motion sequence number six by submitting proper papers correcting, inter alia the CPLR 2106 defect.

All three motions are returnable on June 11, 2026.

The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C.