Hilpert v. 16 Judge SPV LLC (2025)

Case details
Full caption
Kings County Daniel HILPERT v. JUDGE SPV LLC
Country
United States
Jurisdiction
New York (NY)
Court
New York Court of Appeals
Decided
2025
Disposition
Motion Granted
Panel
Boddie (Justice)
Hilpert v. 16 Judge SPV LLC, 2025 WL 3540936 (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3540936 (N.Y.Sup.) (Trial Order)Supreme Court of New York.Kings CountyDaniel HILPERT, Plaintiff,v.16 JUDGE SPV LLC, David Khaloyan, Michael Benjamin, Jacob Segarra,Besen Partners LLC, David Koshers, Esq., and Doe Defendants 1-3, Defendants.No. 522220/2025.December 4, 2025.Editor's Note: This decision contains discussion of citation references that are incorrect or do notactually exist. These invalid citations appeared in the original court opinion and have been preserved aswritten since they are part of the official record. Any links to these invalid citations have been removed.*1 At an IAS Part 95 of the Supreme Court of the State of New York, Held inand for the County of Kings, at the Courthouse, Located at 360 Adams Street,Borough of Brooklyn, City and State of New York on the 4th Day of December 2025MS 2, 3Decision and OrderPresent: Honorable Reginald A. Boddie, Justice.The following e-filed papers read herein: NYSCEF Doc Nos. MS 2 31-62, 80-102, 110-111, 113 MS 3 63-79, 103-109, 114, 116-128 Defendant David Koshers, Esq.'s motion seeking dismissal of all claims asserted against him, a declaration that plaintiff is avexatious litigant, sanctions for allegedly frivolous conduct, and an award of costs and fees, together with plaintiff's cross-motion for a default judgment against David Koshers, Esq. on liability, are decided as follows:BackgroundThis action arises out of an alleged coordinated scheme by defendants to orchestrate a strategic foreclosure on a rent-stabilizedproperty located at 16 Judge Street, Brooklyn, New York (the “Property”), which is also a marital asset subject to ordersin plaintiff's ongoing divorce proceedings. Pro se plaintiff Daniel Hilpert (“Hilpert”) alleges that his former attorney, DavidKoshers (“Koshers”), misused confidential information from a prior attorney-client relationship to assist 16 Judge SPV LLCand its principal, David Khaloyan, acquire a loan and commence foreclosure, obtain a second receiver ex parte in the foreclosureaction despite an existing matrimonial receiver, and time everything to interfere with his divorce proceeding. Hilpert furthercontends that after the foreclosure receiver took over, they failed to update required New York City Housing Preservation &Development (“HPD”) registrations, performed unpermitted construction, ignored safety and rent-stabilization obligations, and
Hilpert v. 16 Judge SPV LLC, 2025 WL 3540936 (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2allowed violations and fines to accrue while leaving him on record as the responsible party, exposing him to civil, criminal,and regulatory liability.By Decision and Order dated August 7, 2025, Hon. Lawrence Knipel denied plaintiff's order to show cause seeking a temporaryrestraining order to prevent defendants from prosecuting their summary judgment motion in the related foreclosure action andfrom taking any further steps affecting the Property (motion sequence 1). Justice Knipel held that “[t]he instant proceeding ismerely a collateral attack on the decision of this Court rendered in the Foreclosure action, which is currently under appeal. TheApp. Div. has already denied interim relief. Accordingly, OSC is DENIED. Movant is cautioned that further dilatory tacticswill invite imposition of sanctions” (NYSCEF Doc No. 25).By Notice of Partial Discontinuance dated August 13, 2025, plaintiff discontinued the instant action against defendants 16 JudgeSPV LLC and David Khaloyan (NYSCEF Doc No. 28).Koshers now moves to dismiss all claims against him under CPLR 3211 and 3016(b). to have Hilpert declared a vexatiouslitigant, and to obtain sanctions and $10,000 in fees and costs, arguing that: (1) this case is a duplicative second bite at the samedispute already pending in New York County titled Daniel Hilpert v. David Koshers Esq., Index No. 155934/2025 (the “NewYork County Action”), so it is barred by the prior pending action doctrine; (2) Hilpert personally lacks standing because theProperty is owned by 16 Judge LLC; (3) no attorney-client relationship ever existed between Hilpert and Koshers, so there isno fiduciary duty and no basis for any of the tort claims; (4) the pleaded causes of action are legally insufficient, duplicativeof the New York County Action, and not pled with the required particularity; and (5) Hilpert's pattern of multiple overlappingsuits and motions, including commencement of at least five proceedings and assertion of counterclaims in two other actionswithin the three months prior to Koshers' filing of the instant motion, plus prior judicial findings about his conduct, warrants afinding of frivolous, harassing litigation and the imposition of sanctions, filing restrictions, and costs in Koshers' favor.*2 In the New York County Action, Hilpert alleges that Koshers committed legal malpractice and breached fiduciary dutiesby using confidential information obtained while advising Hilpert to later represent an adverse party and initiate foreclosureagainst him on the same Property. By Decision and Order dated October 27, 2025, Hon. Paul A. Goetz granted Koshers' motionto dismiss the New York County Action in its entirety.1 Hon. Goetz held that Hilpert failed to plead facts establishing anattorney-client relationship necessary to sustain a legal malpractice claim, that the fiduciary-duty claim was duplicative of themalpractice claim, and that New York does not recognize an independent cause of action for “conflict of interest.” Hon. Goetzfurther dismissed the remaining claims for tortious interference, aiding and abetting breach of fiduciary duty, and constructivefraud as abandoned due to Hilpert's failure to oppose those portions of the motion, and directed the clerk to enter judgment infavor of Koshers as against Hilpert with costs and disbursements to Koshers.Hilpert opposes and cross-moves for a default judgment on liability against Koshers under CPLR 3215, arguing that Kosherswas personally served on July 15, 2025, failed to respond by the August 15 deadline, and filed his dismissal motion 11 days latewithout seeking an extension or showing good cause. Substantively, Hilpert asserts that he and Koshers had a long-standingattorney-client relationship, that Koshers learned confidential details about Hilpert's matrimonial constraints and the Property,then secretly assisted 16 Judge SPV LLC in buying the mortgage note and pursued an ex parte receivership in Kings Countywithout disclosing the existing matrimonial receiver, which amount to fraud, abuse of process, and deceit on the court underJudiciary Law § 487. Plaintiff contends this action is not duplicative of the New York County Action, that he has standingbecause he personally suffered severe financial, legal, and reputational harm, and that his own filings are good-faith efforts toaddress attorney misconduct, making Koshers' sanctions and vexatious litigant request retaliatory and unfounded.In opposition to the cross-motion, Koshers argues that Hilpert's request for a default judgment is baseless because service underCPLR 308(2) was not complete until July 26, 2025, making Koshers' August 25, 2025 motion to dismiss timely; that Hilpertknowingly miscalculates the deadline despite having been previously instructed on the rule; and that the cross-motion reflects acontinued pattern of frivolous, sanctionable conduct. Koshers contends that Hilpert's opposition relies on inadmissible materials,including confidential settlement communications, cites numerous “phantom” cases and nonexistent quotations, and abandons
Hilpert v. 16 Judge SPV LLC, 2025 WL 3540936 (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3several causes of action by failing to oppose dismissal arguments. Koshers further asserts that plaintiff fails to cure the coredefects in his claims: the absence of any attorney-client relationship, lack of confidential information, failure to plead “but-for”causation or damages, and the non-viability of Judiciary Law § 487 or constructive fraud theories.In reply, plaintiff reasserts that Koshers' motion to dismiss is untimely and procedurally defective; that a long-standing attorney-client and fiduciary relationship existed, supported by documentary evidence; that Koshers misused confidential informationto assist a hostile note purchaser in engineering a foreclosure and concealing a pre-existing matrimonial receivership; that theverified complaint adequately pleads breach of fiduciary duty, constructive fraud, Judiciary Law § 487, abuse of process, andrelated claims that are not duplicative of the separate New York County Action; that none of his claims were abandoned; thatKoshers' documentary evidence does not utterly refute his allegations; that sanctions are unwarranted and retaliatory; and that,because Koshers defaulted by filing his CPLR 3211 motion eleven days late without good cause, plaintiff is entitled to a defaultjudgment or, alternatively, discovery.Discussion*3 “A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence resolves all factualissues as a matter of law, and conclusively disposes of the plaintiff's claim” (Fonlanetta v Doe, 73 AD3d 78, 83 [2d Dept 2010][citation and internal quotation marks omitted]). Such documentary evidence must be “of undisputed authenticity” (id.). Indeed,“[t]o constitute documentary evidence, the evidence must be unambiguous, authentic, and undeniable' ” (Xu v Van Zwienen,212 AD3d 872, 874 [2d Dept 2023] [citation and internal quotation marks omitted]).“On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction,accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory” (USCHAG Corp. v Flagstar Bank, FSB, 220AD3d 823, 823-24 [2d Dept 2023] [citation omitted]). “Although a court may consider materials submitted by the defendantin support of its motion, the materials must establish conclusively that the plaintiff has no cause of action” (id.). Moreover,“a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion iswhether the proponent of the pleading has a cause of action, not whether he has stated one” (Leon v Martinez, 84 NY2d 83, 88[1994] [citation and internal quotation marks omitted]). “The pleading will be deemed to allege whatever may be implied fromits statements by reasonable intendment and the court must give the pleader the benefit of all favorable inferences that may bedrawn from the complaint” (Dunn v Gelardi, 59 AD3d 385, 386 [2d Dept 2009] [citation omitted]).Attorney-Client RelationshipPlaintiff's claims against Koshers rest fundamentally on the assertion that he and Koshers shared a long-standing attorney-clientrelationship through which Koshers purportedly obtained confidential information later used against him. Even affording thecomplaint a liberal construction and every favorable inference, the pleadings and exhibits fail to allege, and the documentaryevidence affirmatively refutes, the existence of any attorney-client relationship between Hilpert and Koshers.Plaintiff alleges that Koshers was “an attorney who represented [him] in multiple legal matters over more than a decade,” but theonly specific engagement he identifies is a 2024 mezzanine loan transaction in Wyoming involving plaintiff's business partners.In support, plaintiff relies on a North Hill Capital Management term sheet that references a generic “Legal Deposit of $10,000,”but the document does not identify any attorney or law firm, does not mention Koshers, and contains no language suggestingthat Koshers undertook to represent Hilpert personally (see NYSCEF Doc No. 70). Plaintiff provides no engagement letter,retainer agreement, billing records, or any other documentary evidence showing that Koshers undertook to represent him. Evenif the “Legal Deposit of $10,000” was for Koshers to act as the attorney representing North Hill Capital Management on themezzanine loan transaction, Koshers would only be the attorney to the entity, where Hilpert was the CIO (see NYSCEF DocNo. 119) and a member (see NYSCEF Doc No. 120), not to Koshers in his individual capacity,
Hilpert v. 16 Judge SPV LLC, 2025 WL 3540936 (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4Nor do plaintiff's exhibits cure this defect. Plaintiff's exhibit labeled “Koshers Email” consists of a January 16, 2025settlement communication in which Koshers, expressly acting for 16 Judge SPV LLC, writes to Hilpert's real-estate counsel,Anthony Simari, regarding potential resolution “prior to commencing any sort of enforcement action” (NYSCEF Doc No.10). In that correspondence, Koshers speaks of Hilpert as Simari's “client,” plainly in the posture of opposing counsel, andnothing in the exhibit suggests he ever represented Hilpert. Likewise, the email chains submitted by plaintiff as “KoshersCommunications” (NYSCEF Doc No. 71) and “Koshers Email to Plaintiff” (NYSCEF Doc No. 121) show Koshers beingintroduced and treated throughout as the “lender's attorney,” coordinating diligence and discussing timing for documents inconnection with the mezzanine loan. Those communications do not reflect an attorney undertaking to advise Hilpert personallyor to protect his individual legal interests. Taken together, plaintiff's own exhibits demonstrate that Koshers was entity counsel,first for the lender on the Wyoming transaction and later for 16 Judge SPV LLC, and do not support the existence of an attorney-client relationship with Hilpert individually.Constructive Fraud (The First Cause of Action)*4 “The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, anintent to induce reliance, justifiable reliance by the plaintiff and damages” (Ofman v Richland, 234 AD3d 865, 866 [2d Dept2025] [citations omitted]). “The elements of a cause of action to recover for constructive fraud are the same as those to recoverfor actual fraud with the crucial exception that the element of scienter upon the part of the defendant, his [or her] knowledgeof the falsity of his [or her] representation, is dropped ... and is replaced by a requirement that the plaintiff prove the existenceof a fiduciary or confidential relationship warranting the trusting party to repose his [or her] confidence in the defendant andtherefore to relax the care and vigilance he [or she] would ordinarily exercise in the circumstances” (id.). Additionally, “[a]cause of action sounding in fraud must be pleaded with the requisite particularity under CPLR 3016(b)... [which] is satisfiedwhen the facts suffice to permit a reasonable inference of the alleged misconduct” (id.).Here, Koshers has established that plaintiff fails to allege the existence of any fiduciary or confidential relationship betweenhimself and Koshers, a prerequisite to constructive fraud, as no such relationship exists as a matter of law. Plaintiff's allegationsdo not plausibly support that he reposed any legally cognizable trust or confidence in Koshers, nor that Koshers undertook toact on plaintiff's behalf in his individual capacity.In addition, the constructive fraud claim is not pleaded with the requisite particularity under CPLR 3016(b). The complaintasserts constructive fraud against “all defendants” but does not allege any specific deceptive act by Koshers individually. Thepleading simply recites that “Defendants failed to update the HPD registration” and that such failure “constitutes constructivefraud.” Even crediting plaintiff's later argument in motion papers that the constructive fraud claim is instead premised onKoshers' alleged misuse of confidential information, plaintiff still fails to identify what misused communication was privilegedor confidential, and, as discussed above, no attorney-client relationship existed that could give rise to any duty to maintainconfidentiality.Accordingly, the branch of Koshers' motion seeking dismissal of the first cause of action alleging constructive fraud is granted.Tortious Interference with Prospective Economic Advantage (The Second Cause of Action)To state a claim of tortious interference with prospective economic advantage, plaintiff must allege that Koshers used “wrongfulmeans” or acted “for the sole purpose of harming the other party” (see Influx Capital, LLC v Pershin, 186 AD3d 1622, 1624[2d Dept 2020] [citation omitted]). “[A]s a general rule, the defendant's conduct must amount to a crime or an independenttort” (Carvel Corp. v Noonan, 3 NY3d 182, 191 [2004]). “Conduct that is not criminal or tortious will generally be lawfuland thus insufficiently culpable to create liability for interference with prospective contracts or other nonbinding economicrelations” (id.).
Hilpert v. 16 Judge SPV LLC, 2025 WL 3540936 (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works.5Here, plaintiff alleges that Koshers improperly obtained and misused “confidential information” from an alleged prior attorney-client relationship, then “began representing Khaloyan and the newly formed entity 16 Judge SPV LLC, in acquiring the notesecured by the Property” and “executed the transfer documents on behalf of SPV and issued foreclosure notices to Plaintiff,”which are “actions ... taken in direct conflict with his prior role as Plaintiff's attorney and used information obtained from thatrelationship to advance the foreclosure.” As discussed in detail above, however, plaintiff has failed to plead facts establishingthe existence of any attorney-client or fiduciary relationship with Koshers and has not identified any confidential or privilegedinformation that was uniquely known to Koshers or unavailable from public records or the buyer's own communications.*5 Even accepting plaintiff's characterizations, the conduct alleged is not criminal, not independently tortious, and notundertaken solely to inflict harm. Plaintiff's allegation that Koshers “executed the transfer documents” and “issued foreclosurenotices” on behalf of 16 Judge SPV LLC merely describes the routine and entirely lawful conduct of a counsel.Accordingly, the branch of Koshers' motion seeking dismissal of the second cause of action alleging tortious interference withprospective economic advantage is granted.Abuse of Process (The Fourth Cause of Action)“Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harmwithout excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective” (Lynn vMcCormick, 153 AD3d 688, 688 [2d Dept 2017] [citations and internal quotation marks omitted]). “The mere commencementof a lawsuit cannot serve as the basis for a cause of action alleging abuse of process” (id.). “[T]here must be an unlawfulinterference with one's person or property under color of process in order that action for abuse of process may lie” (id.).Here, accepting the facts as alleged in the complaint as true and according plaintiff the benefit of every possible favorableinference, plaintiff fails to state an abuse of process claim as against Koshers. The only “process” identified is that “defendants ...with legal assistance from David Koshers, initiated a foreclosure action in Kings County Supreme Court” and “creat[ed] aconflicting receivership,” both of which constitute ordinary and lawful steps in prosecuting a foreclosure, not a misuse of judicialprocess.As to Koshers' alleged “misuse of legal process to exploit insider knowledge for strategic advantages,” plaintiff alleges that acertain “memorandum of contract” provided by defendants in the foreclosure action was “generated during Plaintiff's divorceproceedings and was not readily available through standard public searches,” thus it must have been “either provided by thedefaulting buyer, with whom Defendant Khaloyan colluded, and/or by Defendant Koshers, who had obtained it during his priorattorney-client relationship with Plaintiff.” This allegation is wholly unsupported by the record. As Koshers correctly notes inhis papers, and as confirmed by the documents submitted by both Hilpert and Koshers (NYSCEF Doc Nos. 7, 50, 72, 88, 127),the memorandum of contract was recorded in the Office of the City Register of the City of New York on March 11, 2024, andwas publicly accessible on ACRIS ever since. The foreclosure action, 16 JUDGE SPV LLC, v. 16 JUDGE LLC et al., Index No.504990/2025, was not commenced until February 11, 2025, nearly a year after the memorandum of contract was recorded andmade available to the public (NYSCEF Doc No. 11). As such, the use of a document that is publicly accessible through a routineproperty records search in a foreclosure action cannot support plaintiff's theory that Koshers misused confidential informationor engaged in any improper or “insider” exploitation of judicial process.Accordingly, the branch of Koshers' motion seeking dismissal of the fourth cause of action alleging abuse of process is granted.Civil Conspiracy (The Fifth Cause of Action)
Hilpert v. 16 Judge SPV LLC, 2025 WL 3540936 (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works.6“New York does not recognize civil conspiracy to commit a tort as an independent cause of action” (McSpedon v Levine, 158AD3d 618, 621 [2d Dept 2018] [citations omitted]). “[I]n order to properly plead a cause of action to recover damages for civilconspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort,and an overt action in furtherance of the agreement” (id.). When “the underlying tort of fraud was properly dismissed, the causeof action alleging civil conspiracy to commit fraud was also properly dismissed, since it stands or falls with the underlyingtort” (id.).*6 Here, as the underlying constructive fraud claim against Koshers is dismissed, the civil conspiracy claim against him mustalso be dismissed. Accordingly, the branch of Koshers' motion seeking dismissal of the fifth cause of action alleging civilconspiracy is granted.Judiciary Law § 487 (The Sixth Cause of Action)“Pursuant to Judiciary Law § 487, an attorney who is guilty of any deceit or collusion, or consents to any deceit or collusion,with intent to deceive the court or any party is liable to the injured party for treble damages (Guliyev v Banilov & Assoc., P.C.,221 AD3d 589, 591 [2d Dept 2023] [citations and internal quotation marks omitted]). “A violation of Judiciary Law § 487requires an intent to deceive” (id.). Additionally, to state a Judiciary Law § 487 claim. “[a]llegations regarding an act of deceitor intent to deceive must be stated with particularity” (Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2d Dept2018], affd, 35 NY3d 173 [2020] [citations omitted]).Here, plaintiff alleges that Koshers, “in the context of an attorney-client relationship,” “obtained confidential and privilegedinformation concerning the Property” but later “began representing Defendant Khaloyan and 16 Judge SPV LLC” in theforeclosure action and “provided or facilitated access to sealed or non-public documents ... the memorandum of contract.” Asdiscussed above, plaintiff fails to establish any attorney-client relationship from which confidential information could arise,and the memorandum of contract was recorded and publicly available on ACRIS well before the foreclosure action. Plaintiffidentifies no specific false statement, no deceptive act directed at any court, and no facts supporting the essential element ofintent to deceive. These conclusory assertions fall far short of the particularity required under CPLR 3016(b), and therefore thebranch of Koshers' motion seeking dismissal of the sixth cause of action for Judiciary Law § 487 is granted.Declaratory and Injunctive Relief (The Seventh Cause of Action)Plaintiff's seventh cause of action for declaratory and injunctive relief in paragraphs 76 to 81 of the verified complaint merelyrestates prior allegations and fails to articulate any specific declaratory judgment sought or identify any injunctive reliefrequested against any defendant. Because plaintiff asserts no cognizable, standalone claim and seeks no concrete remedy, hefails to sufficiently state this cause of action as a matter of law. Accordingly, the branch of Koshers' motion seeking dismissalof the seventh cause of action for declaratory and injunctive relief is granted.Plaintiff's Cross-Motion for a Default JudgmentCPLR 308(2) unambiguously provides that for “service upon a natural person ... by delivering the summons within the state toa person of suitable age and discretion at the actual place of business ... proof of such service shall be filed with the clerk of thecourt ... [and] service shall be complete ten days after such filing.” CPLR 320[a] then provides that a defendant's “appearanceshall be made within thirty days after service is complete” if “the summons was served ... pursuant to subdivision two ... ofsection 308.” Indeed, it is well settled that when “[p]roof that service upon the defendant ... was made by delivery of the summonsand complaint to a person of suitable age and discretion at his dwelling and by mailing a copy to him at his residence ... servicewas complete 10 days after the filing date, and [the defendant]'s time to appear or answer did not begin to run until [10 daysafter the filing date]” (Friedman v Ostreicher, 22 AD3d 798, 799 [2d Dept 2005] [citations omitted]).
Hilpert v. 16 Judge SPV LLC, 2025 WL 3540936 (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works.7*7 Here, plaintiff's own affirmation of service states that service on Koshers was not personal but was made on “Matt Schechter(Associate Attorney), a person of suitable age and discretion,” on July 15, 2025 (NYSCEF Doc No. 10). Proof of service wasfiled the next day, July 16, 2025. Under CPLR 308(2), service was therefore not complete until July 26, 2025, and Koshers'thirty-day time to appear or answer ran through August 25, 2025.Koshers alleges he “filed and served his motion for dismissal of Hilpert's Complaint on August 25, 2025,” and is thus timely.Although all of Koshers' motion papers are dated August 25, 2025, the NYSCEF timestamps reflect that the filings werecompleted at 12:03 a.m. on August 26, 2025, three minutes past the deadline (see NYSCEF Docs No. 31-62). Given the volumeof more than thirty documents uploaded simultaneously, it appears that the electronic filing process began on August 25, 2025and was only completed three minutes after midnight due to uploading, labeling, and processing time rather than any intentionaldelay. Moreover, plaintiff fails to establish any prejudice arising from this de minimis three-minute delay.“[I]n consideration of the strong public policy of this State that matters be decided on their merits [rather than on default]” andthe extensive allegations made in the verified complaint, plaintiff's cross-motion for default judgment is hereby denied (seeNavarro v A. Trenkman Estate, Inc., 279 AD2d 257, 258 [1st Dept 2001] [citations omitted]).Plaintiff's Sanctionable and Frivolous Conduct under 22 NYCRR 130.1-1Pursuant to 22 NYCRR 130-1.1, “[t]he court, in its discretion, may award to any party or attorney in any civil action orproceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonablyincurred and reasonable attorney's fees, resulting from frivolous conduct,” and that “[t]he court, as appropriate, may make suchaward of costs or impose such financial sanctions against either an attorney or a party to the litigation.” 22 NYCRR 130-1.1(c)further defines “frivolous conduct” as conduct that is “completely without merit in law and cannot be supported by a reasonableargument for an extension, modification or reversal of existing law,” or “undertaken primarily to delay or prolong the resolutionof the litigation, or to harass or maliciously injure another.”Plaintiff's cross-motion here falls squarely within that definition. As detailed in Koshers' opposition, plaintiff relies on a dozenof purported “cases” and numerous quotations that simply do not exist in any official reporter or legal database. For example,plaintiff cites “Loeb v Loeb, 84 AD2d 591 (2d Dept 1981)” (NYSCEF Doc No. 64, 35) and asserts a legal decision purportedlydrawn from that decision. However, upon review by the Court, the citation “84 AD2d 591” corresponds only to two unrelatedThird Department decisions: Sanginario v Monroe County Pure Waters Div., 84 AD2d 591 (3d Dept 1981), and First DepotCorp. v State, 84 AD2d 591 (3d Dept 1981). Neither case involves the parties or subject matter plaintiff describes, and nor dothe cases contain the quotation plaintiff attributes to the nonexistent “Loeb” decision.A full list of the twelve nonexistent case citations and seven fabricated quotations plaintiff relies upon is identified in Koshers'opposition papers (NYSCEF Doc No. 102). Despite this, plaintiffs 24-page reply, which was submitted in seemingly single- or1.5-spacing, offers no explanation for the fabricated authorities. Hilpert's only explanation is that he “appear[s] pro se and do[es]not have access to commercial legal research platforms such as Westlaw or Lexis,” and that his “research has relied exclusivelyon publicly available sources.” However, Hilpert provides no description or documentation of any such “publicly availablesources” that could have yielded these nonexistent authorities. Hilbert further claims that “[f]or this reply, [he] took [the] extrastep of cross-checking all case law to ensure proper citations,” but his 24-page reply contains not a single citation to any case law.*8 Plaintiff's reliance on fictitious authorities, without explanation or correction even after the issue was raised, constitutesfrivolous conduct under 22 NYCRR 130-1.1(c). Plaintiff's “pro se status does not excuse his failure to check the legal citationsthat he offers to a court” (Dowlah v Professional Staff Congress, 227 AD3d 609, 610 [1st Dept 2024], lv to appeal denied, 42NY3d 911 [2025]; see also, Will of Samuel, 82 Misc 3d 616 [Sur Ct 2024] [holding that “submitting document that containedfictional or erroneous citations ... constituted frivolous conduct]).
Hilpert v. 16 Judge SPV LLC, 2025 WL 3540936 (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works.8Accordingly, the branch of Koshers' motion for an award in Koshers' favor against Hilpert for sanctionable and frivolous conductpursuant to 22 NYCRR 130.1-1 is granted to the extent that Hilpert shall reimburse Koshers for the reasonable attorneys' feesand costs incurred in preparing and submitting his papers (NYSCEF Doc Nos. 96-110, 113-114) in opposition to Hilpert's cross-motion.Vexatious LitigantAs set forth by the Second Department in Sassawer v Signorelli, 99 AD2d 358, 359 [2d Dept 1984] [citations omitted]):“[P]ublic policy mandates free access to the courts and zealous advocacy is an essential component of our legal system and,ordinarily, the doctrine of former adjudication will serve as an adequate remedy against repetitious suits.Nonetheless, a litigious plaintiff pressing a frivolous claim can be extremely costly to the defendant and can waste aninordinate amount of court time, time that this court and the trial courts can ill afford to lose. Thus, when, as here, a litigant isabusing the judicial process by hagriding individuals solely out of ill will or spite, equity may enjoin such vexatious litigation.”Here, Koshers has shown that Hilpert advances substantially the same allegations in this action as in the New York CountyAction, and that Hilpert's affidavit and memorandum of law in support of his cross-motion are replete with fabricated casecitations and nonexistent legal authorities. Plaintiff's pressing of multiple frivolous and duplicative claims against the samedefendant in parallel actions, coupled with his submission of extensive motion papers grounded in fictitious cases, constitutesan abuse of the judicial process and warrants a designation of a vexatious litigant within the Court's discretion.Accordingly, the branch of Koshers' motion seeking to deem Hilpert a vexatious litigant is granted, and Hilpert is hereby (i)deemed a vexatious litigant in this action, and (ii) directed to refrain from filing any further motions in this matter without firstobtaining leave of Court.ConclusionBased on the foregoing, Hilpert's cross-motion for a default judgment is denied. It is furtherORDERED that Koshers' motion is granted to the extent that (i) all causes of action asserted against Koshers in the verifiedcomplaint are dismissed; (ii) Hilpert shall reimburse Koshers for the reasonable attorneys' fees and costs incurred in respondingto Hilpert's cross-motion; and (iii) Hilpert is deemed a vexatious litigant for purposes of this action. The remainder of Koshers'motion is denied. It is furtherORDERED that, within ten (10) days of entry of this Decision and Order, Koshers shall provide Hilpert with detailed billingrecords reflecting his attorneys' fees and costs incurred in responding to Hilpert's cross-motion. It is furtherORDERED that, within thirty (30) days of entry of this Decision and Order. Koshers shall file on NYSCEF either (i) a letterconfirming that such payment has been received in full, or (ii) if the parties are unable to resolve payment, a proposed judgmentaccompanied by the detailed billing records for the Court's review. It is further*9 ORDERED that Hilpert shall not file any further motions in the instant action without first obtaining leave of Court.Any argument not explicitly addressed herein was considered and deemed to be without merit or unnecessary to address giventhe court's determination.ENTER:
Hilpert v. 16 Judge SPV LLC, 2025 WL 3540936 (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works.9<<signature>>Honorable Reginald A. BoddieJustice, Supreme CourtFootnotes1See Daniel Hilpert v. David Koshers Esq., New York County Supreme Court, Index No. 155934/2025, NYSCEF Doc No. 63.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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