Civil Court of the City of New York, Queens County

Decided on June 9, 2026

Index No. LT-302423-20/QU

Vijay M. Kitson, J.

[*1]

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Moving Papers/Seq. No. NYCEF Doc No:

Shorenstein's Order to Show Cause to Vacate the Consent Order, the Judgment and Dismiss the Proceed (Seq. 1) 20-36, 41, 139-245

Opposition to Shorenstein's Order to Show Cause seeking Vacatur of the Consent Order and [*2]Judgment and dismissal (Seq. 1) 120-22, 139-245

Shorenstein's Reply to Petitioner's Opposition to his Order to Show Cause to Vacate Consent Order and Dismiss the Proceeding (Seq. 1) 20-36, 41

Respondent's Motion to Quash (Seq. 6) 98-105

Opposition to Motion to Quash (Seq. 6) 120-122

Motion to Accelerate Return Date of Shorenstein's Motion to Quash (Seq. 4) 116-119

Motion to Supplement the Record as to Motion Sequence #1 (Seq. 7) 139-245

Kohn's Order to Show Cause to Vacate the Consent Order, the Judgment and Dismiss the Proceeding (Seq. 8) 148-157

Petitioner's Opposition to Kohn's Order to Show Cause seeking Vacatur of the Consent Order and Judgment and dismissal (Seq. 8) 160-171

Kohn's Reply to Petitioner's Opposition to his Order to Show Cause (Seq. 8) 181-183

Petitioner's Cross Motion for Sanctions (Seq. 9) 172-178

Respondent's Opposition to Petitioner's Cross Motion for Sanctions (Seq. 9) 172-178

Petitioner's Reply to Respondent's Opposition in Support of Sanctions (Seq. 9) 187-188

Upon the foregoing cited papers, the Decision/Order on the Motion is as follows:

I. The Relevant Background and Procedural History

Petitioner, the Department of Housing Preservation and Development of the City of New York (hereinafter "HPD" or "Petitioner"), commenced this proceeding by Order to Show Cause against, Silvershore Properties 95 LLC, Silvershore Cypress LLC, Alex Kohn and David Shorenstein (hereinafter collectively as "Respondents"), the owners and responsible parties for the property commonly known as 1708 Summerfield Street, Ridgewood, New York 11385 ("Subject Premises"). Petitioner seeks multiple forms of relief under the Housing Maintenance Code and Multiple Dwelling Law, including an order to correct violations, civil penalties for failure to correct violations, a tenant harassment finding, and civil penalties relating to harassment. (CCA § 110[c]; N.Y.C. Admin. Code §§ 27-2115, 27-2121; Ny St Cts Elec Filing [NYSCEF] Doc. No. 1, at pg 160, ¶¶ 36-58).

On April 27, 2021, Benjamin Z. Epstein, Esq. (hereinafter "Epstein") filed a Verified Answer to the Order to Show Cause. The answer stated that "the undersigned has been retained as attorney for the above captioned respondents" and demanded service of all papers upon Epstein. ([NYCEF] Doc No. 9 at pg 1). The Answer was signed by Epstein as "Attorney for Respondents" and the Answer was verified by Austin Benscher, who identified himself as an agent for "Silvershore Properties 95 LLC, et al., Respondents." ([NYCEF]Doc No. 9 at pg 4; [NYCEF] Doc No. 20; [NYCEF] Doc No. 45 ¶ 5). Moreover, Epstein consented to NYSCEF service for all Respondents. (See NYSCEF Doc No. 45 ¶ 54).

Thereafter, on May 12, 2021, Petitioner and Respondents entered into a Consent Order which was executed by Epstein on Respondent's behalf. (NYSCEF Doc No. 11). Within the Consent Order, Respondents acknowledge that consent was made with full knowledge of the terms and consequences of the order, that the consent was freely and voluntarily given, and that all parties agreed the order could be submitted to the Court without further notice. (NYSCEF Doc No. 11 at pg 1 ¶ 2). The Consent Order expressly recited that Respondents admitted proper service of the Order to Show Cause and Verified Petition and admitted that they were owners of [*3]the subject premises as defined by Administrative Code § 27-2004 (a) (45). Id. The Consent Order separately recited that Alex Kohn (hereinafter "Kohn") was the registered managing agent and/or an owner of the premises as defined by Multiple Dwelling Law § 4 (44) and Administrative Code § 27-2004 (a) (45), and that David Shorenstein (hereinafter "Shorenstein"), Silvershore Properties 95 LLC, and Silvershore Cypress LLC were registered owners and/or owners under the Housing Maintenance Code and Multiple Dwelling Law. (id). Additionally, under the Consent Order, the civil penalty claims were settled for $37,500.00, payable by June 30, 2021 (NYSCEF Doc No. 11 ¶ 2(i)). Importantly, as part of the agreement, if the $37,000 civil penalty was not paid timely, Respondents consented to the entry of Judgment against them in the amount of $375,000 (NYSCEF Doc No. 11 ¶ 2 [ii]).

Respondents failed to pay $37,500.00 settlement amount by June 30, 2021, as required by the Consent order (NYSCEF Doc Nos. 12-15). Although the Consent Order did not require notice to Respondents before entry of judgment, the record shows that before HPD proceed with its judgment application, it reached out by email to Epstein to inform him that payment had not been received (NYSCEF Doc No. 12, 45 ¶¶ 63-66).

On December 12, 2023, judgment was entered against Respondents in the amount of $375,000.00 (NYSCEF Doc No. 16; Shorenstein Ex 10, NYSCEF Doc No. 33). The notice of entry was filed on January 3, 2024 and the NYSCEF confirmation notice reflects email notification to HPD counsel and Epstein. (NYSCEF Doc No. 17; NYSCEF confirmation notice, Shorenstein Ex 11, NYSCEF Doc No. 34).

Subsequently, on January 31, 2025, Thompson LLP appeared for Shorenstein by consent to change attorney (NYSCEF Doc No. 19). Shorenstein then moved by Order to Show Cause to vacate the Consent Order and judgment as against him pursuant to CPLR § 317 and CPLR § 5015 (a) (4), and to dismiss the proceeding as against him pursuant to CPLR § 3211 (a) (8) (NYSCEF Doc No. 20, Meier aff; NYSCEF Doc No. 21; NYSCEF Doc No. 22; NYSCEF Doc No. 23). Shorenstein also sought a temporary restraining order staying enforcement. HPD objected by letter and Shorenstein replied by letter (NYSCEF Doc No. 38, 39). This Court signed Order to Show Cause to restore the case to the calendar but struck the proposed enforcement stay language (NYSCEF Doc No. 41).

Shorenstein also moved separately to quash post-judgment subpoenas and for a protective order (NYSCEF Doc Nos. 98, 99, 100-105).

In response to Shorenstein's motion, Petitioner moved for sanctions, costs, attorneys' fees, and disqualification against Epstein (NYSCEF Doc No. 68, 69). Epstein then cross-moved for sanctions and attorneys' fees against HPD's counsel (NYSCEF Doc No. 123, 24). HPD and Epstein later stipulated to withdraw all requests for relief in those sanctions motion sequences. (NYSCEF Doc No. 131).

On or about March 4, 2025, Epstein moved to be relieved as counsel for Kohn, Silvershore Properties 95 LLC, and Silvershore Cypress LLC (NYSCEF Doc No. 107). This motion was granted. Thereafter, on December 21, 2025, Respondent Alex Kohn moved to vacate the Consent Order and judgment as against him arguing he was a low-level J. Wasser employee, not an owner or person in control, that he did not authorize Epstein to appear or settle, and that he was not properly served (NYSCEF Doc No. 148-158). Based on the allegations in Kohn's moving papers Petitioner cross-moved for sanctions against Kohn and Hyman pursuant to 22 [*4]NYCRR 130-1.1 (NYSCEF Doc Nos. 172-176; HPD reply, NYSCEF Doc No. 187).

With all pending motions marked submitted, this Court's decision is as follows:

II. Law and Its Application

A. HPD's Motion To Supplement the Record

Petitioner moves to supplement the record on Shorenstein's motion to vacate. Specifically, Petitioner seeks to add later-filed materials including Epstein's clarifying affirmation, the stipulation withdrawing the Epstein sanctions motions, prior Housing Part consent orders, and Shorenstein's Supreme Court complaint against Epstein (NYSCEF Doc. Nos. 139-145). Petitioner argued that these materials directly bare on the authority, apparent authority, reliance, and remedy issues raised by Shorenstein. (NYSCEF Doc. No. 140).

CPLR § 2214(c) requires the motion record to include papers necessary to the consideration of the questions involved. CPLR § 2004 permits the Court to extend time fixed by statute, rule, or order for good cause. A court has discretion to consider supplemental papers where the papers are relevant, where they assist the court in deciding the issues on a complete record, and where the opposing party is not unfairly prejudiced (CPLR § 2004; CPLR 2214(c); U.S. Bank Trust, N.A. v. Ellis, 181 AD3d 451 [1st Dept 2020]; Matapos Technology Ltd. V. Compania Adina De Comercio Ltd., 68 AD3d 672 [1st Dept 2009]; HMS Holdings Corp. v Arendt, 47 Misc 3d 1222[A] [Sup Ct, Albany County 2015]).

Additionally, a court may take judicial notice of its own records, public records, and related filings where those records are relevant to the issues before it (See CPLR 4511; CPLR 4540; Matter of Khatibi v Weill, 8 AD3d 485, 485-486 [2d Dept 2004]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 19-20 [2d Dept 2009]; Casson v Casson, 107 AD2d 342, 344 [1st Dept 1985]).

This Court finds that the supplemental materials are directly relevant because Shorenstein's motion placed Epstein's authority directly in issue. Shorenstein relied on Epstein's January 15, 2025, affirmation, in which Epstein stated that he never dealt with Shorenstein in this case, that J. Wasser brought him the matter, and that J. Wasser authorized the settlement. (NYSCEF Doc No. 22 ¶¶ 3-9; NYSCEF Doc No. 24).

Petitioner is entitled to respond to that evidentiary submission with additional materials bearing on the same authority issue. Epstein's later affirmation states that he had personal conversations with Austin Benscher and Alex Kohn, who were acting through J. Wasser, and that those persons had actual and apparent authority concerning Silvershore Properties 95 LLC, Silvershore Cypress LLC, and Shorenstein. (NYSCEF Doc No. 124 ¶ 35). The stipulation withdrawing motion sequence Nos. 2 and 5 further recites that Epstein represented that his clarifying affirmation was truthful and that he believed he had authority to enter the Consent Order (NYSCEF Doc No. 131 ¶¶ 3-4).

The prior HPD records are also relevant. They bear on whether HPD reasonably relied on Epstein's appearance for Shorenstein and Silvershore-related respondents in this proceeding, whether there was a course of representation in Housing Part matters, and whether Shorenstein's remedy, if any, is against Epstein or the management company rather than against HPD's judgment (NYSCEF Doc Nos. 139-145).

Furthermore, there is no unfair prejudice. The supplemental materials do not assert a new claim in this proceeding. They address issues already raised by Shorenstein's own motion. [*5]Petitioner made a noticed motion, and Shorenstein had an opportunity to respond. (See § CPLR 2214; See generally Peros v Jurac, 76 Misc 3d 1204(A) Queens Civ Ct. 2022]).

As such, Petitioner's motion to supplement the record is granted. This Court will consider the supplemental materials only for the purpose of deciding the other pending motions.

B. Shorenstein's Motion to Vacate the Consent Order and Judgment and to Dismiss the Proceeding

Respondent Shorenstein moves to vacate the Consent Order and judgment as against him pursuant to CPLR § 317 and CPLR § 5015 (a) (4), and to dismiss the proceeding as against him pursuant to CPLR 3211 (a) (8) (NYSCEF Doc No. 20-23). Shorenstein's arguments for vacatur and dismissal revolve around the claims that that he was never served, never had actual notice of the proceeding before judgment, never personally authorized Epstein to appear, never authorized Epstein to sign the Consent Order, and first learned of the judgment in October 2024 when a bank discovered it during due diligence (See NYSCEF Doc No. 23 ¶¶ 5-11, 18-27, 31-43). He also argues that J. Wasser was not his personal agent, that 1261 39th Street was J. Wasser's address rather than his address, and that 38 East 29th Street was an outdated commercial address (NYSCEF Doc No. 23 ¶¶ 18-22, 36-43).

Petitioner opposes, arguing that Shorenstein was an "owner" under the broad statutory definitions in the Multiple Dwelling Law and Housing Maintenance Code; that the LLC owners used J. Wasser and Kohn as the statutory management structure for the premises; that service was authorized by Civil Court Act § 110 (m); that Epstein had at least apparent authority; and that HPD reasonably relied on Epstein's appearance, answer, NYSCEF consent, and Consent Order (NYSCEF Doc No. 45 ¶¶ 3-11, 47-87).

The first question this Court must determine is whether Epstein had authority to bind Shorenstein to the Consent Order.

1. The Apparent-Authority Rule Applied by the Court

For purposes of deciding the motion, the Court notes that there is no evidence that Shorenstein personally spoke with Epstein about this specific HP proceeding before the Consent Order was entered. Shorenstein claims that he did not know about the proceeding until October 2024, when a bank discovered the judgment during due diligence (NYSCEF Doc No. 23 ¶¶ 5-9). Additionally, Epstein's January affirmation states that he "never dealt with David Shorenstein" concerning this case and that J. Wasser involved him in this matter (NYSCEF Doc No. 22 ¶¶ 4-9; NYSCEF Doc No. 24).

That fact, however, is not dispositive. An attorney's authority can be actual or apparent. (Hallock v State, 64 NY2d 224, 231 [1984]; Amerally v Liberty King Produce, Inc., 170 AD3d 637, 638 [2d Dept 2019]; Davidson v Metropolitan Tr Auth., 44 AD3d 819, 819 [2d Dept 2007]). Apparent authority depends on the principal's words or conduct, viewed from the standpoint of a reasonable third party (Ford v Unity Hosp., 32 NY2d 464, 472-473 [1973]).

Thus, apparent authority can be established when the (1) words or conduct of the principal creates the appearance of authority; (2) there is communication of this appearance to a third party; (3) a reasonable reliance by the third party on this appearance; and (4) acceptance of the agent's services by the third party based on that reliance. Courts treat apparent authority as a doctrine related to estoppel, whereby principals are bound by representations that induce third-[*6]party reliance and may be prevented from denying the agency relationship (See Hallock v State of New York, 64 NY2d at 231; Ford v Unity Hosp., 32 NY2d 464, 472-473 [1973]; Gibson, Dunn & Crutcher LLP v Koukis, 44 NY3d 25, 33-36 [2025]; Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443, 448 [1958]).

Importantly, apparent authority cannot be created solely by the agent's own acts. See Hallock v State of New York, 64 NY2d at 231; Greene v Hellman, 51 NY2d 197, 204 [1980]. The inquiry focuses on the principal's conduct and whether that conduct made the third party's reliance reasonable. (See Ford v Unity Hosp., 32 NY2d at 472-473; ER Holdings, LLC v 122 W.P.R. Corp., 65 AD3d 1275, 1277 [2d Dept 2009]).

The first apparent-authority element is satisfied. The record shows words or conduct by Shorenstein created the appearance that the registered management structure had authority to handle this Housing Part proceeding for all parties involved.

The record identifies Shorenstein as a member of Silvershore Properties 95 LLC and Silvershore Cypress LLC. (NYSCEF Doc No. 23 ¶¶ 4, 12). The record also shows that J. Wasser was approached by Jason Silverstein and Shorenstein to assist with management of more than 75 residential apartment properties, that J. Wasser entered management agreements with Silvershore related entities, and that Silvershore Properties 95 LLC owned the Subject Premises (NYSCEF Doc No. 28 ¶¶ 38-40, 58).

The owners of a multiple dwelling must register ownership and management information with HPD and must designate a managing agent (See Multiple Dwelling Law § 325; Administrative Code of City of NY §§ 27-2097, 27-2098, 27-2100, 27-2101). Administrative Code § 27-2106 provides that a registration statement filed with HPD is prima facie proof of the statements contained in it in proceedings brought by a city agency or tenant (See Administrative Code of City of NY § 27-2106).

Silvershore Properties LLC registered the premises to J. Wasser's address and listed Kohn as registered managing agent (NYSCEF Doc No. 45 ¶¶ 34-46). Shorenstein also acknowledges that the Silvershore entities failed to update the Secretary of State address for Silvershore Properties 95 LLC and Silvershore Cypress LLC after they left 38 East 29th Street (NYSCEF Doc No. 23 ¶¶ 38-42; NYSCEF Doc No. 35).

These facts constitute principal conduct for purposes of apparent authority. The principal conduct was not merely Epstein's assertion that he represented Respondents. It was the Shorenstein's use of LLC ownership entities, the designation and use of a property management structure, the registration of Kohn as managing agent, and the maintenance of public and HPD-facing addresses through which Housing Part enforcement would proceed which created the impression that Epstein had authority to litigate this matter on behalf of Shorenstein (See Dept. of Hous. Preserv. and Dev. of City of New York v Arfa, 31 Misc 3d 137(A) [App Term 2011] [finding that normal HPD's attorney could reasonably believe that Arfa was appearing by the same attorney as the building owner and other "owner" respondents]; Multiple Dwelling Law § 325; Administrative Code of City of NY §§ 27-2097, 27-2101, 27-2106).

The second element for apparent authority is also satisfied. The appearance of authority was communicated to HPD through the statutory registration structure, HPD's multiple dwelling records, the Secretary of State records, and the court filings made in this proceeding.

Petitioner had before it the registered managing agent and registered address information [*7]for the premises (NYSCEF Doc No. 45 ¶¶ 34-46). HPD also had Epstein's answer filed for "the above captioned respondents," his demand that papers be served on him, his signature as attorney for Respondents, and his NYSCEF consent for all Respondents (NYSCEF Doc No. 9 at 1, 4; NYSCEF Doc No. 45 ¶¶ 49-54). The answer was verified by Austin Benscher, who identified himself as agent for "Silvershore Properties 95 LLC, et al., Respondents." (NYSCEF Doc No. 10; NYSCEF Doc No. 45 ¶ 53. Epstein thereafter signed the Consent Order as attorney for Respondents (NYSCEF Doc No. 11 at 3). These facts communicated to Petitioner that Epstein was acting through the registered management and ownership structure for all Respondents.

The third apparent-authority element is also satisfied. Petitioner's reliance was reasonable because this was an HP enforcement proceeding involving statutory owners and a registered managing agent, not an ordinary private dispute with a lawyer appearing for a stranger. HPD was entitled to rely on the statutory management structure in a Housing Part matter. (See Civil Court Act § 110; Multiple Dwelling Law §§ 4(44), 325; Administrative Code of City of NY §§ 27-2004(a)(45), 27-2097, 27-2101; Langsam Prop. Services Corp. v McCarthy, 261 AD2d 208, 209-10 [1st Dept 1999]). HPD was also entitled to rely on an attorney who filed an answer for all Respondents, consented to NYSCEF service for all Respondents, and signed a Consent Order that expressly admitted service, owner status, knowledge, consent, and waiver (NYSCEF Doc No. 9; NYSCEF Doc No. 11).

The reasonableness of Petitioner's reliance is further supported by HPD's evidence that Epstein had a long course of representation involving Silvershore related entities and had appeared in Housing Court matters involving Shorenstein (NYSCEF Doc No. 45 ¶¶ 22-31). While prior representation alone does not conclusively establish authority in a later case, it can be relevant as to whether Petitioner reasonably relied on Epstein's appearance in this Housing Part enforcement proceeding (See Marasco v ExxonMobil Oil Corp., 224 AD3d 738, 741 [2d Dept 2024]).

Furthermore, the fourth apparent-authority element is also satisfied. HPD accepted Epstein's services by treating him as counsel for all Respondents, negotiating the Consent Order with him, accepting his signature as counsel for Respondents, withdrawing without prejudice its first claim for an order to correct, accepting the settlement amount of $37,500 in lieu of further litigation of civil penalties, and later proceeding to judgment only after nonpayment ([NYSCEF] Doc No. 11 ¶¶ 1-2; NYSCEF Doc Nos. 12-15) Petitioner's acceptance of Epstein's services was precisely the kind of third-party reliance that apparent authority protects. (See Hallock v State of New York, 64 NY2d at 231; Ford v Unity Hosp., 32 NY2d at 472-473; Gibson, Dunn & Crutcher LLP v Koukis, 44 NY3d at 33-36; Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d at 448).

As such, this Court finds that Epstein had apparent authority to bind Shorenstein to the Consent Order.

2. Implications of the Binding Consent Order

The Consent Order states that Respondents admitted proper service of the Order to Show Cause and Verified Petition. (NYSCEF Doc No. 11 at 1). It also states that Respondents admitted their owner status under Administrative Code § 27-2004 (a) (45) (id.).

Personal jurisdiction objections may be waived. (See CPLR 320(b); Matter of Fry v [*8]Village of Tarrytown, 89 NY2d 714, 718 [1997]; Rubino v City of New York, 145 AD2d 285, 287 [1st Dept 1989]). A party who appears through counsel with actual or apparent authority may waive service and jurisdictional objections. (See Hallock v State of New York, 64 NY2d at 231; Gibson, Dunn & Crutcher LLP v Koukis, 44 NY3d at 33-36).

Because Epstein had apparent authority, the Consent Order's service admission binds Shorenstein as against HPD. Shorenstein may not relitigate service years later unless he first establishes a basis to vacate the Consent Order itself, which he has failed to do.

3. Service Was Supported by the Housing Part Statutory Scheme

Even apart from waiver, the service record does not warrant vacatur. The record reflects that Petitioner served Shorenstein at 1261 39th Street, 3rd Floor, Brooklyn, New York, the J. Wasser & Co. address used in the management structure, and at 38 East 29th Street, 8th Floor, New York, New York, the address registered with the Secretary of State for the LLC Respondents. Shorenstein argues that 1261 39th Street was J. Wasser's office only and that 38 East 29th Street was an old Silvershore office (NYSCEF Doc No. 23 ¶¶ 18-22, 36-43; NYSCEF Doc No. 21 ¶¶ 22-39). In ordinary litigation governed by CPLR § 308, service at an address that is not the defendant's dwelling place, usual place of abode, or actual place of business may be defective. (See Everbank v Kelly, 203 AD3d 138, 143-145 [2d Dept 2022]; Feinstein v Bergner, 48 NY2d 234, 241 [1979]). This case, however, is an HP proceeding governed by Civil Court Act § 110 (m), which authorizes alternative service at the address registered with HPD in Housing Maintenance Code proceedings (Civil Court Act § 110 [m]).

Notably, Shorenstein admits that the Silvershore entities failed to update the 38 East 29th Street address with the Secretary of State after they vacated that space (NYSCEF Doc No. 23 ¶¶ 38-42; NYSCEF Doc No. 35). Courts have rejected efforts to vacate HP defaults where lack of notice flows from inaccurate or outdated registration information (See Ellouzi v Sherman, 63 Misc 3d 1216[A] [Civ Ct, NY County 2019]; Dept. of Hous. Preserv. & Dev. of City of NY v 532-536 W. 143rd St. Realty Corp., 8 Misc 3d 136[A] [App Term, 1st Dept 2005]; Dept. of Hous. Preserv. & Dev. of City of NY v Barrett, 20 Misc 3d 135[A] [App Term, 1st Dept 2008]; Dept. of Hous. Preserv. & Dev. of City of NY v 373 8th St. Realty, 35 Misc 3d 147[A] [App Term, 2d Dept 2012]).

4. CPLR § 317, CPLR §5015(a)(4), CPLR § 3211(a)(8), and CPLR § 306-b are inapplicable and do not provide relief

CPLR § 317 permits a person served other than by personal delivery, who "does not appear," to defend within one year after obtaining knowledge of entry of judgment, but not more than five years after entry, if the person did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (See CPLR § 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141-142 [1986]).

CPLR § 317 does not apply because Shorenstein appeared through counsel with apparent authority. A party who appeared through counsel with authority or apparent authority is not a nonappearing party for CPLR § 317 purposes (Fleetwood Park Corp. v Jerrick Waterproofing Co., Inc., 203 AD2d 238, 239 [2d Dept 1994]).

Even if CPLR § 317 were available, Shorenstein has not established a meritorious defense against HPD's Consent Order and judgment. His proposed defense is lack of personal jurisdiction. As previously discussed, service was proper.

Similarly, CPLR § 5015 (a) (4) and CPLR § 3211 (a) (8) permits dismissal for lack of jurisdiction. A judgment entered without personal jurisdiction is a nullity (See Feinstein v Bergner, 48 NY2d at 241). Personal jurisdiction, however, may be waived See (CPLR 320 [b]).

Here, the Court had subject matter jurisdiction under Civil Court Act § 110. Shorenstein appeared through counsel with apparent authority. The Consent Order admitted service. The judgment was entered only after Respondents failed to pay the settlement amount, and the Consent Order expressly permitted entry of judgment without further notice upon Respondents' failure to satisfy their payment obligations (NYSCEF Doc No. 11 ¶ 2(ii); NYSCEF Doc No. 16).

Shorenstein also argues that, because more than 120 days have passed since commencement, the proceeding must be dismissed under CPLR § 306-b. (NYSCEF Doc No. 21 ¶ 56). That argument fails because the Court does not find that HPD lacked personal jurisdiction. As already discussed, Shorenstein appeared through counsel with apparent authority, and the Consent Order admitted service. (Hallock v State of New York, 64 NY2d at 231; Gibson, Dunn & Crutcher LLP v Koukis, 44 NY3d at 33-36). The Court therefore need not reach whether any discretionary extension would be warranted under CPLR 306-b. (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-106 [2001]).

Shorenstein's motion to vacate the Consent Order and judgment as against him pursuant to), and to dismiss the proceeding as against him pursuant to is denied. To the extent Shorenstein seeks a stay of enforcement under CPLR § 2201 or CPLR §5240, that request is also denied as academic in light of this determination and is otherwise denied on the merits. (See CPLR § 2201; CPLR 5240; Guardian Loan Co. v Early, 47 NY2d 515, 519-520 [1979]; Castle Restoration & Constr., Inc. v Castle Restoration, LLC, 155 AD3d 678, 682 [2d Dept 2017]).^FN1

C. Respondent Shorenstein's Motion to Quash Subpoenas and for a Protective Order

Respondent Shorenstein moves under CPLR § 2304, CPLR § 3103, and CPLR § 5240 to quash subpoenas served on him, Hildreth Real Estate Advisors LLC, Hildreth Real Estate Advisors GP LLC, Jason Breitstone, ConnectOne Bank, and other entities or people that have a relationship to him. He also seeks a protective order barring Petitioner from serving or enforcing subpoenas or restraints concerning his finances (NYSCEF Doc No. 98, 95, 100-105).

Petitioner opposes arguing that no stay is in place, post-judgment disclosure is broad, and Shorenstein fails to identify any particular demand that is irrelevant, overbroad, privileged, or [*9]abusive (NYSCEF Doc No. 117 ¶¶ 49-66; NYSCEF Doc No. 120 ¶¶ 49-66).

The scope of disclosure under CPLR § 5223 is "generous" and permits a judgment creditor to inquire through the judgment debtor or through third parties who may possess knowledge of the debtor's property. (See Gryphon Dom. VI, LLC v GBR Info. Servs., Inc., 29 AD3d [1 Dept 2006]; Liberty Co. v Rogene Indus., 272 AD2d 382 [2d Dept 2000]; Berisha v Tosca Café, Inc., 202 AD3d 531, 532 [1st Dept 2022]). A judgment creditor may obtain discovery from either the judgment debtor or a third party in order to determine whether the judgment debtor concealed assets, transferred assets, or otherwise improperly prevented collection of the judgment (See Young v Torelli, 135 AD2d 813, 815 [2d Dept 1987]; Technology Multi Sources, S.A. v Stack Global Holdings, Inc., 44 AD3d 931, 932 [2d Dept 2007]).

The party moving to quash a subpoena bears the initial burden of establishing that the disclosure sought is utterly irrelevant to any proper inquiry or that the futility of the process to uncover anything legitimate is inevitable or obvious (See Matter of Kapon v Koch, 23 NY3d 32, 34, 38-39 [2014]; Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331-332 [1988]). This burden is not satisfied by general objections, conclusory assertions, or a failure to identify the particular subpoena demands that are alleged to be improper (See Matter of Kapon v Koch, 23 NY3d at 34, 38-39; Gryphon Dom. VI, LLC v GBR Info. Servs., Inc., 29 AD3d at 393; George v Victoria Albi, Inc., 148 AD3d 1119, 1119 [2d Dept 2017]).

CPLR § 5240 gives the Court broad discretion to deny, limit, condition, regulate, extend, or modify the use of an enforcement procedure, but that discretion is exercised to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or to the Court. (See Guardian Loan Co. v Early, 47 NY2d 515, 519 [1979]; Country Bank v Broderick, 120 AD3d 463, 464 [2d Dept 2014]; Castle Restoration & Constr., Inc. v Castle Restoration, LLC, 155 AD3d 678, 682 [2d Dept 2017]). CPLR § 5240 is not, however, a device to obstruct ordinary judgment enforcement, and it is New York public policy to put no unnecessary obstacle in the path of a judgment creditor seeking to enforce their judgment (Alpert v Alpert, 151 AD3d 541, 542 [1st Dept 2017]; U.S. Bank N.A. v APP Intl. Fin. Co., B.V., 100 AD3d 179, 183 [1st Dept 2012]).

A restraining notice is an enforcement device authorized by CPLR § 5222 and operates as a form of injunction prohibiting transfer or interference with property in which the judgment debtor has an interest (Aspen Indus., Inc. v Marine Midland Bank, 52 NY2d 575, 579 [1981]; Distressed Holdings, LLC v Ehrler, 113 AD3d 111, 116-117 [2d Dept 2013]). When a restraining notice is properly served upon a judgment debtor or a garnishee, its effect continues until the judgment is satisfied or vacated, or, as to a garnishee, until the statutory expiration period applies (See Aspen Indus., Inc. v Marine Midland Bank, 52 NY2d at 579).

Upon review of the record this Court denies Shorenstein's motion to quash. Shorenstein's motion fails to demonstrate that HPD's subpoenas seek information that is utterly irrelevant to satisfaction of the judgment. He also fails to demonstrate that the futility of the subpoenas to uncover legitimate judgment-enforcement information is inevitable or obvious. He does not identify any particular subpoena demand that is improper, overbroad, unduly burdensome, privileged, or unrelated to collection of the judgment. (See generally Matter of Kapon v Koch, 23 NY3d at 38-39; Lisogor v Nature's Delight, Inc., 189 AD3d at 1388-1389).

The central premise of Respondent Shorenstein's motion is that the judgment should be vacated and the proceeding dismissed against Shorenstein. As discussed supra, Respondent Shorenstein's motion to vacate the Consent Order, the judgment and to dismiss the action was denied. A motion to quash is not a substitute for a motion to vacate the judgment, and a judgment debtor may not relitigate a denied vacatur motion by recasting the same arguments as objections to Article 52 discovery. Furthermore, a judgment that has not been satisfied, vacated, or stayed remains enforceable through CPLR article 52 (CPLR § 5223; CPLR § 5224; CPLR § 5222; Berisha v Tosca Café, Inc., 202 AD3d 531, 532 [1st Dept 2022])

A review of the subpoenas shows they are facially directed to information that is relevant to judgment enforcement. They seek information concerning bank accounts, distributions, income, business interests, securities, real estate, loans, claims, transfers, insurance interests, other assets, liabilities, and persons with knowledge of the judgment debtors' property (NYSCEF Doc. Nos. 101-104). Such categories fall within the ordinary scope of CPLR § 5223 because they may reveal assets available to satisfy the judgment or transfers relevant to collection (See Berisha v Tosca Café, Inc., 202 AD3d at 532; Lisogor v Nature's Delight, Inc., 189 AD3d at 1388).

Shorenstein simply fails to offer competent proof that any subpoenaed entity lacks relevant information. An attorney affirmation may place documents before the Court and frame legal arguments, but it is not a substitute for evidence establishing factual claims outside counsel's personal knowledge. (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]; Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2d Dept 2006]). The absence of a factual showing is significant because the moving party bears the initial burden of showing utter irrelevance or obvious futility (Matter of Kapon v Koch, 23 NY3d at 38-39; Lisogor v Nature's Delight, Inc., 189 AD3d at 1388-1389; Elavon, Inc. v Meyer, 203 AD3d at 1031).

The restraining notices likewise are not vacated. Shorenstein has not shown that the restraining notices violate CPLR § 5222, CPLR § 5222-a, CPLR § 5205, or any exemption statute. He has not identified exempt funds, established that any bank restraint violated the Exempt Income Protection Act, or shown that HPD failed to provide any statutorily required notice or form (NYSCEF Doc No. 99; CPLR § 5222; CPLR § 5222-a; CPLR § 5205; Distressed Holdings, LLC v Ehrler, 113 AD3d at 116-121; Jackson v Bank of Am., N.A., 149 AD3d 815, 816 [2d Dept 2017]). To the extent any restrained person contends that particular funds are exempt, that issue may be raised through the statutory exemption procedures or by a properly supported application.

Shorenstein's request for a protective order under CPLR § 5240 is also denied. The Court is not persuaded by Shorenstein's assertion that HPD's enforcement activity is coercive or harassing because Petitioner served subpoenas after Shorenstein filed his vacatur motion. The record shows ordinary Article 52 discovery in aid of an unsatisfied money judgment (CPLR § 5223; CPLR § 5224; CPLR § 5222; Berisha v Tosca Café, Inc., 202 AD3d at 532; U.S. Bank N.A. v APP Intl. Fin. Co., B.V., 100 AD3d at 183). The fact that judgment-enforcement subpoenas request financial information does not make them improper, as the purpose of CPLR § 5223 is to permit the judgment creditor to identify assets and financial relationships relevant to satisfying the judgment (Matter of Wydra v Brach, 227 AD3d 727 [2d Dept 2024]).

Finally, to the extent Shorenstein argues that CPLR 3103 (b) suspended responses to the subpoenas while this motion was pending, any such suspension is no longer operative upon [*10]denial of the motion. (CPLR 3103 [b]).

The Court has considered Shorenstein's remaining arguments and finds them without merit. The judgment remains valid and enforceable. The subpoenas seek information relevant to satisfaction of that judgment. Shorenstein has not established utter irrelevance, obvious futility, undue burden, privilege, statutory noncompliance, or any equitable ground for a blanket protective order.

Petitioner's motion to accelerate the return date of respondent Shorenstein's motion to quash is granted to the extent that this Court has considered and decided that motion together with all other related post-judgment motions.

D. Respondent Kohn's Motion to Vacate the Consent Order and Judgment Is Denied

Respondent Kohn moves to vacate the Consent Order and judgment as against him. He argues that he was a low-level J. Wasser employee, that he was not an owner or person in control, that he did not authorize Epstein to appear or settle, that he was not properly served, and that the judgment is inequitable. (See NYSCEF Doc No. 149, 150, 157-158).

Petitioner opposes, arguing that Kohn was the registered managing agent in HPD records, signed MDR and eCertification documents, received extensive notices of violation at the J. Wasser address, and appeared through Epstein with apparent authority (NYSCEF Doc No. 160 ¶¶ 3-4, 15-24, 36-59,161-161 ,187).

As an initial matter this Court notes that the Kohn, like Shorenstein is bound by the Consent Order unless he establishes grounds for vacatur (Hallock v State of New York, 64 NY2d 224, 230 [1984]; Matter of Galasso, 35 NY2d 319, 321 [1974]). A stipulation resolving litigation may be vacated only upon a showing sufficient to invalidate a contract, such as fraud, collusion, mistake, accident, duress, overreaching, unconscionability, or lack of authority (Hallock v State of New York, 64 NY2d at 230; Matter of Frutiger, 29 NY2d 143, 149-150 [1971]). A written settlement subscribed by counsel or reduced to an order and entered satisfies CPLR 2104. (CPLR 2104; Amerally v Liberty King Produce, Inc., 170 AD3d 637, 637-638 [2d Dept 2019]).

The Consent Order expressly recites that Kohn was the registered managing agent and/or owner of the premises as defined by Multiple Dwelling Law § 4 (44) and Administrative Code § 27-2004 (a) (45) (NYSCEF Doc No. 11 at 1). That recital was central to Kohn's inclusion in the proceeding and the settlement (Multiple Dwelling Law § 4 [44]; Administrative Code of City of NY § 27-2004 [a] [45]; Langsam Prop. Servs. Corp. v McCarthy, 261 AD2d at 210-211).

1. Attorney Authority and the Consent Order

Kohn's principal argument to vacate the consent order and judgment is that Mr. Epstein lacked authority to appear for him and lacked authority to enter into the Consent Order. This Court finds that argument without merit.

As discussed infra, under New York law, an attorney's stipulation may bind a client even where the attorney exceeds actual authority, provided the attorney had apparent authority to enter the stipulation (Hallock v State of New York, 64 NY2d at 231; Davidson v Metropolitan Tr. Auth., 44 AD3d 819, 819 [2d Dept 2007]). The question is not limited to a private retainer agreement between attorney and client. The question also includes whether the opposing party and the Court could reasonably rely upon counsel's appearance, conduct, filings, and representation of authority (Hallock v State of New York, 64 NY2d at 231; Clark v Bristol-Myers Squibb & Co., 306 AD2d 82, 85 [1st Dept 2003]).

Respondent Kohn was named as an owner respondent by virtue of his alleged status as registered managing agent and person responsible for the premises ([NYSCEF Doc No. 160 ¶¶ 3-4, 15-24). Mr. Epstein filed a verified answer as attorney for "the above captioned respondents" (NYSCEF Doc No. 9 at 1). He signed the Consent Order as attorney for Respondents. The Consent Order expressly stated that respondents appeared by Mr. Epstein, admitted service, acknowledged their owner status, and consented to the payment-default judgment provision (id.). No separate attorney appeared for Kohn at the time. No objection to Mr. Epstein's authority was made before entry of the Consent Order. No objection was made before the payment deadline expired. No objection was made when HPD sought judgment for nonpayment. No objection was made for years after the Consent Order was entered.

The record reflects the fact that Mr. Epstein has represented Kohn in numerous Housing Court matters and signed stipulations or consent orders on Kohn's behalf in other proceedings ([NYCEF Doc 141, 144). Petitioner also submitted the March 2025 stipulation in which Mr. Epstein represented that the statements in his clarifying affirmation were truthful and that he had actual authority from employees of J. Wasser & Co., including Kohn and Austin Benscher, to act on their behalf. Those facts support both actual authority and, independently, apparent authority (NYSCEF Doc No. 143).

Kohn's counsel asserted that Epstein admitted he never spoke to Kohn (NYSCEF Doc No. 150 ¶ 7). That assertion, however, is not supported by Epstein's January 15, 2025, affirmation, which concerned Epstein's lack of direct communication with Shorenstein, not Kohn (NYSCEF Doc No. 22 ¶¶ 6-9).

Additionally, Kohn's assertion that he did not personally sign a retainer agreement with Mr. Epstein does not require vacatur. New York law does not require the party opposing vacatur to produce a signed retainer agreement to establish apparent authority (Hallock v State of New York, 64 NY2d at 231; Davidson v Metropolitan Tr. Auth., 44 AD3d at 819; Amerally v Liberty King Produce, Inc., 170 AD3d at 638). The absence of a written retainer may bear upon issues between Kohn, Mr. Epstein, J. Wasser & Co., or other respondents, but it does not defeat Petitioner's reasonable reliance upon Mr. Epstein's appearance, answer, consent to NYSCEF service, signature on the Consent Order, prior course of representation, and the official HPD records identifying Kohn as registered managing agent.

The Court therefore finds that Mr. Epstein had apparent authority to appear for Kohn and to enter into the Consent Order on his behalf. The Court further finds that the record supports actual authority, but even if actual authority were disputed, apparent authority is sufficient to bind Kohn.

2. Personal Jurisdiction and Service

Kohn's jurisdictional argument is also denied. As a threshold matter, Kohn originally argued that no affidavit of service had been filed (NYSCEF Doc No. 150 ¶¶ 10-14). In reply, he acknowledged that an affidavit of service does in fact appear on the docket and stated that he is no longer pursuing that defense (NYSCEF Doc No 181 ¶¶ 30-31). That concession alone disposes of the specific filing-defect argument advanced in the moving papers.

Kohn's reliance upon RPAPL § 735 is misplaced. As discussed supra, this is an HPD Housing Part enforcement proceeding, not a summary proceeding to recover possession under RPAPL article 7. Housing Part enforcement proceedings brought by HPD are governed by the [*11]Civil Court Act, the CPLR, and the Housing Maintenance Code (NY City Civ Ct Act § 110 [a], [m]). In Department of Hous. Preserv. & Dev. v Ju Jin Li, 24 Misc 3d 237, 240 [Civ Ct, Kings County 2009], the Court held that RPAPL article 7 is not pertinent to HP proceedings and that HPD must utilize the CPLR and Civil Court Act to institute its Housing Part proceedings.

Civil Court Act § 110 (m) expressly provides for service in Housing Maintenance Code proceedings and authorizes service, in appropriate circumstances, at the address registered with HPD (NY City Civ Ct Act § 110 [m] [1]-[6]). The statute reflects a legislative judgment that HPD and the public must be able to rely upon registration information filed with HPD in order to enforce housing standards (Department of Hous. Preserv. & Dev. of City of NY v 2515 LLC, 6 Misc 3d 1039[A] [Civ Ct, NY County 2005]).

A process server's affidavit of service constitutes prima facie evidence of proper service (Wells Fargo Bank, N.A. v Chaplin, 65 AD3d 588, 589 [2d Dept 2009]; U.S. Bank N.A. v Dass, 200 AD3d 1003, 1004 [2d Dept 2021]; Bank of NY Trust Co., N.A. v Herbin, 240 AD3d 684 [2d Dept 2025]). A conclusory denial of service is insufficient to rebut that presumption; a movant must provide a detailed, fact-specific contradiction supported by documentary or other evidence sufficient to require a traverse hearing (Wilmington Sav. Fund Socy., FSB v Zabrowsky, 212 AD3d 866, 869 [2d Dept 2023]).

Here, Kohn does not submit a fact-specific denial refuting the operative details of the affidavit of service. He does not deny that 1261 39th Street, 3rd Floor, Brooklyn, New York, was served or that the address was not actually the properly registered address. He does not deny that he worked at that address during the relevant period. He does not submit an affidavit from Austin Benscher, from J. Wasser & Co., from the process server, or from any other person with personal knowledge contradicting the affidavit of service. Instead, Kohn argues that service upon an employee of J. Wasser & Co. was defective because the management company's interests were allegedly adverse to his own. That argument is speculative and is legally insufficient to rebut the prima facia presumption afforded to affidavits of service.

Furthermore, cases concerning delivery to a person of suitable age and discretion require the Court to consider whether the relationship between the recipient and the person to be served makes it more likely than not that the recipient will deliver process (Bakht v Akhtar, 18 Misc 3d 78, 80 [App Term, 2d Dept 2007]). Those cases do not hold that service at a registered business address is invalid whenever the movant later asserts, without independent proof, that the recipient's employer may have had divergent interests. Kohn's argument would substantially undermine Civil Court Act § 110 (m) and the Housing Maintenance Code registration scheme by permitting registered managing agents to avoid service through later, unsupported accusations against the very address and personnel listed in the registration records.

In any event, the Consent Order independently disposes of the service objection. Respondents, appearing by counsel with apparent authority, expressly admitted proper service of the order to show cause and verified petition (NYSCEF Doc No. 11 at pg 1 ¶ 2). It is axiomatic that a party may waive personal jurisdiction defenses by appearance, stipulation, or consent. (Cadlerock Joint Venture, L.P. v Kierstedt, 119 AD3d 627, 628 [2d Dept 2014]; Matter of Fry v Village of Tarrytown, 89 NY2d 714, 722 [1997]). Because Mr. Epstein had at least apparent authority to appear for Kohn and enter the Consent Order, Kohn is bound by the jurisdictional admission contained therein.

Accordingly, Kohn has not shown that the Court lacked personal jurisdiction under CPLR 5015.

3. Kohn's Late Forgery Theory

Kohn's moving affidavit stated that, in hindsight, J. Wasser may have misrepresented his role by holding him out as managing agent through filings he did not sign or consent to. (NYSCEF Doc No. 149 ¶ 5). His reply papers expanded that assertion into a claim that J. Wasser forged his signature on numerous HPD filings (NYSCEF Doc Nos. 181-185,187 ¶¶ 23-27)

A party may not raise a new factual theory for the first time in reply. (See Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1st Dept 1992]; Dannasch v Bifulco, 184 AD2d 415, 417 [1st Dept 1992]; All State Flooring Distribs., L.P. v MD Floors, LLC, 131 AD3d 834, 836 [1st Dept 2015]).

Even if this Cout were to consider this argument, the forgery theory is unsupported. Kohn provides no handwriting expert, no affidavit from a J. Wasser employee admitting forgery, no forensic proof, no contemporaneous objection, no police report, and no persuasive explanation for how numerous filings over multiple years were allegedly forged while he remained employed by the same management company. A bare assertion of forgery is insufficient to defeat documentary evidence (See Banco Popular N. Am. v Victory Taxi Mgt., Inc., 1 NY3d 381, 384 [2004]).

4. Registered Managing Agent Liability

Kohn's asserted defense that he cannot be personally liable because he was merely a low-level employee of J. Wasser & Co. is not persuasive. (NYSCEF Doc No. 149 ¶¶ 3-5).

As discussed above, the Housing Maintenance Code defines "owner" broadly to include an owner, lessee, agent, and any other person, firm, or corporation directly or indirectly in control of a dwelling or part thereof (Administrative Code § 27-2004 [a] [45]). The Code also defines "person" for relevant enforcement purposes to include agents and persons directly or indirectly in control of a dwelling (Administrative Code § 27-2004 [a] [5]). Multiple Dwelling Law § 4 (44) similarly defines "owner" broadly to include agents and persons in control.

A registered managing agent is an "owner" for purposes of imposing liability for Housing Maintenance Code violations. (Department of Hous. Preserv. & Dev. of City of NY v Livingston, 169 Misc 2d at 661; Housing & Dev. Admin. v Bryant Westchester Realty Corp., 90 Misc 2d 816, 818 [App Term, 1st Dept 1977]). In 2515 LLC, the court held that the managing agent's registration with HPD rendered her an owner for purposes of HMC liability and emphasized that HPD and the public must be able to rely upon MDR statements (Department of Hous. Preserv. & Dev. of City of NY v 2515 LLC, 6 Misc 3d 1039[A] [Civ Court, NY County 2005]).

The registration provisions of the Housing Maintenance Code reinforce that conclusion. Administrative Code § 27-2098 requires the registration statement for a multiple dwelling to include the name and address of a managing agent designated by the owner to be in control of and responsible for the maintenance and operation of the dwelling and to authorize emergency repairs. The statute requires the managing agent to sign the registration statement to indicate consent to the designation, unless an owner or corporate officer is registered as managing agent (Administrative Code § 27-2098 [a] [3], [b]).

Petitioner submitted certified records showing Kohn as registered managing agent for the [*12]subject premises, together with documents bearing signatures purporting to be Kohn's [(NYCEF Doc No. 161-163). HPD also submitted evidence that Kohn executed multiple registration forms for other buildings managed by J. Wasser & Co. and that notices of violation were addressed to him at the registered business address (NYSCEF Doc No. 164). This evidence is not incidental. It is official registration evidence upon which HPD and the public are entitled to rely in Housing Maintenance Code enforcement proceedings. Kohn's attempt to characterize the judgment as an improper expansion of liability to every employee of a management company. The judgment is not based merely on Kohn's employment. It is based on the petition naming him as managing agent, HPD's registration records identifying him as registered managing agent, his appearance by counsel, the Consent Order's express admission that he was the registered managing agent and/or statutory owner, and the respondents' consent to entry of judgment upon nonpayment. This is not a case in which HPD seeks to impose liability on an unidentified clerical employee with no registration, no appearance, and no consent order. This is a case involving an individual named and registered as managing agent in HPD records and bound by a so-ordered Consent Order.

Accordingly, Kohn has not established a meritorious defense to the underlying Housing Maintenance Code claims or to the payment-default judgment.

As such, Kohn's request to dismiss the proceeding is denied. The petition states a cognizable Housing Part enforcement proceeding under Civil Court Act § 110 (a), the Multiple Dwelling Law, and the Housing Maintenance Code. Civil Court Act § 110 expressly authorizes HPD to commence proceedings for civil penalties and enforcement of housing standards by order to show cause. (NY City Civ Ct Act § 110 [a] [1], [4], [9]). Kohn appeared, answered, entered into a Consent Order, and admitted the jurisdictional and statutory predicates for liability. Having failed to establish a basis to vacate the Consent Order or judgment, Kohn cannot obtain dismissal of the proceeding.

Furthermore, Kohn's request for costs, disbursements, and attorneys' fees is denied. New York follows the American Rule, under which attorneys' fees are recoverable only when authorized by statute, court rule, or agreement (A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 [1986]; Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]). Kohn identifies no statute, court rule, contract, lease, stipulation, or other agreement entitling him to recover attorneys fees.

E. HPD's Cross-Motion for Sanctions Against Kohn and Hyman

Petitioner cross-moves for sanctions against Kohn and attorney Jordan Marc Hyman (herein after "Hyman") pursuant to 22 NYCRR 130-1.1. HPD seeks a $2,500 sanction and attorneys' fees incurred in opposing Kohn's motion. (NYSCEF Doc Nos. 172-176, 187). HPD argues that Kohn and Hyman asserted material factual statements that were false, including the assertion that HPD failed to file affidavits of service, and that Hyman mischaracterized Epstein's statements by asserting that Epstein admitted he never spoke to Kohn. See HPD cross-motion, (NYSCEF Doc Nos. 172-176; 187 ¶¶ 27-52).

Kohn and Hyman oppose sanctions. Hyman argues that the motion to vacate raised jurisdictional and authority questions, that the alleged docket error was not interposed to harass or delay, that the arguments were grounded in the record as counsel understood it, and that sanctions would chill legitimate jurisdictional challenges ([NYSCEF Doc Nos. 181, 184-185; 184 ¶¶ 68-76). Hyman further argues that HPD's theory would improperly transform disputed [*13]legal and factual questions concerning registered managing agent status, authority, and service into sanctionable conduct (NYSCEF Doc No. 184 ¶¶ 68-76).

Under 22 NYCRR 130-1.1(a), a court may award costs or impose financial sanctions for frivolous conduct. Conduct is frivolous if it is completely without merit in law and cannot be supported by a reasonable argument for extension, modification, or reversal of existing law; if it is undertaken primarily to delay or prolong litigation or to harass or maliciously injure another; or if it asserts material factual statements that are false (See 22 NYCRR 130-1.1(c); Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of NY v 198 Broadway, 76 NY2d 411, 413 [1990]; Weissman v Weissman, 116 AD3d 848, 849 [2d Dept 2014]).

The rule is discretionary, not mandatory (See 22 NYCRR 130-1.1(a); Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of NY v 198 Broadway, 76 NY2d at 413). In determining whether conduct is frivolous, the Court considers the circumstances under which the conduct occurred, the time available to investigate the legal or factual basis of the conduct, and whether the conduct continued after its lack of merit was apparent, should have been apparent, or was brought to counsel's attention (See 22 NYCRR 130-1.1(c); Navin v Mosquera, 30 AD3d 883, 884 [3d Dept 2006]).

Sanctions are reserved for conduct that abuses the judicial process, not merely for losing arguments, aggressive advocacy, legal error, factual mistake, or an unsuccessful attempt to extend existing law (Kremen v Benedict P. Morelli & Assoc., P.C., 80 AD3d 521, 522 [1st Dept 2011]; Stone Mtn. Holdings, LLC v Spitzer, 119 AD3d 548, 549 [2d Dept 2014]); Courts should avoid using sanctions in a way that chills colorable advocacy, particularly where a party raises jurisdictional objections or challenges the authority of counsel to bind him to a judgment (See Matter of Kernisan v Taylor, 171 AD2d 869, 870 [2d Dept 1991]).

A sanctions award must be supported by a written decision identifying the conduct on which the award is based, why the conduct was frivolous, and why the amount imposed is appropriate (See 22 NYCRR 130-1.2; Santaliz v OR FM Assoc., 83 Misc 3d 129(A) [App Term, 2d Dept 2024]).

Petitioner is correct that Kohn's motion was ultimately denied. The Court rejects Kohn's arguments concerning lack of authority, lack of service, lack of registered managing agent status, and the late-raised forgery theory. The Court also agrees with HPD that Kohn's initial assertion concerning the absence of filed affidavits of service was inaccurate, and that Hyman's statement concerning Epstein's alleged admission that he never spoke to Kohn overstated the record (NYSCEF Doc No. 157; 150 ¶ 7; NYCEF Doc No. 8; NYSCEF Doc No. 22 ¶¶ 6-9; NYSCEF Doc No. 124 ¶ 35).

However, the question on a sanctions motion is not whether the movant lost. The question is whether the conduct was frivolous within the meaning of 22 NYCRR 130-1.1 (c). The Court finds that the record does not warrant sanctions.

Kohn's motion raised serious questions from the perspective of the individual movant: whether he personally authorized Epstein, whether he personally understood that he could face a $375,000 judgment, whether his employer or management company properly used his name in HPD filings, and whether service through the management structure was sufficient to bind him. The Court rejects those arguments on the merits because of the Consent Order, the Housing Part statutory scheme, the HPD registration evidence, and the apparent-authority record. But the [*14]existence of a strong basis to deny the motion does not convert the motion into sanctionable conduct (See Stone Mtn. Holdings, LLC v Spitzer, 119 AD3d at 549).

Nor does the late reply theory, standing alone, require sanctions. The Court has disregarded or rejected arguments improperly raised for the first time in reply (See Ritt v Lenox Hill Hosp., 182 AD2d at 562). That procedural ruling adequately addresses the defect. A late or unsuccessful argument is not necessarily frivolous (See Kremen v Benedict P. Morelli & Assoc., P.C., 80 AD3d at 522; Matter of Miller v Miller, 96 AD3d at 944).

Petitioner points out several errors in the Kohn's motion papers. For instance, the Kohn's initial papers asserted that HPD failed to file affidavits of service (NYSCEF Doc No. 157, 158. HPD correctly states that affidavits of service were filed as NYSCEF Doc No. 8. HPD further asserts that it advised Hyman of the error before moving for sanctions. (See HPD reply, NYSCEF Doc No. 187 ¶¶ 28-40).

Kohn's papers also asserted that Epstein admitted he never spoke to Kohn (NYSCEF Doc No. 150 ¶ 7). Epstein's January 15, 2025, affirmation did not state that. It addressed Epstein's lack of communication with Shorenstein (NYSCEF Doc No. 22 ¶¶ 6-9). Epstein's later clarifying affirmation states that he had personal conversations with (NYSCEF Doc No. 124 ¶ 35). HPD relies on that inconsistency as a basis for sanctions (NYSCEF Doc No. 187 ¶¶ 49-55).

The Court agrees that these statements were inaccurate. Still, the Court declines to impose sanctions. The inaccurate characterization occurred in the context of a broader dispute concerning attorney authority, where Epstein submitted two affirmations that the parties characterize differently. The Court has resolved the issue by relying on the full record, including the later clarifying affirmation and the Consent Order. A mischaracterization of the record may, in an appropriate case, support sanctions (See Weissman v Weissman, 116 AD3d at 849). Here, the Court finds that correction of the record and denial of the motion are sufficient.

The Housing Part is a busy statutory forum charged with enforcing housing standards and protecting tenants. (See Civil Court Act § 110 [a], [c]). The Court is mindful that collateral sanctions litigation can consume substantial resources and distract from the merits of code enforcement proceedings. The Court is also mindful that jurisdictional and attorney-authority challenges should not be chilled merely because they are ultimately rejected.

This case already presents extensive post-judgment litigation involving attorney authority, registered managing agent status, statutory owner status, service, subpoenas, and related malpractice allegations. The Court's detailed merits ruling resolves the issues necessary to enforce the Consent Order and judgment. A sanctions award against Hyman and Kohn would not materially assist enforcement, clarify the parties' rights, or advance the purposes of 22 NYCRR 130-1.1 on this record.

The Court therefore exercises its discretion to deny sanctions in full. As such, Petitioner's cross-motion for sanctions against Alex Kohn and Jordan M. Hyman, Esq. is denied in its entirety.

III. CONCLUSION

Based on the foregoing it is so:

ORDERED that Petitioner's motion to supplement the record as to David Shorenstein's motion to vacate is granted; and it is further

ORDERED that respondent David Shorenstein's motion to vacate the May 12, 2021 Consent Order and the December 12, 2023 judgment as against him is denied; and it is further

ORDERED that Petitioner's request to accelerate the return date of Shorenstein's motion to quash is granted to the extent the Court has considered and decided that motion together with the related motions, all other requested relief is denied; and it is further

ORDERED that Alex Kohn's motion to vacate the May 12, 2021 Consent Order and the December 12, 2023 judgment as against him is denied; and it is further

ORDERED that Petitioner's cross-motion for sanctions against Alex Kohn and Jordan M. Hyman, Esq. is denied;

All arguments not addressed in this decision are found to be without merit and denied.

This constitutes the decision and order of the court.

Dated: June 9, 2026

Hon. Vijay M. Kitson

Judge, Housing Court