Supreme Court, New York County, October 20, 2021

Smith Buss & Jacobs LLP, Yonkers (Jeffrey D. Buss of counsel), for plaintiff.

Saul Ewing Arnstein & Lehr LLP, New York City (Stephanie L. Denker of counsel), for The Milton Hershey School and School Trust and others, defendants.

Pryor Cashman LLP, New York City (Perry M. Amsellem of counsel), for Elliot Greenleaf PC and another, defendants.

Plaintiff, an attorney, adjunct law professor, and alumnus of defendant The Milton Hershey School (MHS), seeks damages for defamation and a variety of torts and a declaratory judgment, all arising from defendants' alleged conduct.

By notice of motion dated April 23, 2021, plaintiff moves for an order confirming the parties, correcting the caption, confirming the operative complaint, and approving the form of alternative service on nonparty and proposed defendant Navada Hatfield. (Mot seq No. 1.) Defendants oppose.

By notices of motions dated May 6, 2021, defendants Greenleaf PC and Handelman (collectively Greenleaf defendants) and defendants MHS, Gurt, Carfagno, Heist, Redmond, Saltzman, Brown, Koken, Mead, Peeples-Fullmore, Loeffler Bergen, and Cline (collectively MHS defendants) move pursuant to CPLR 3012 (b) for an order dismissing the action with prejudice. (Mot seq Nos. 2, 3.)

At oral argument on these motions, plaintiff agreed that his cross motion dated June 1, 2021, for an order granting him termination sanctions against defendants and their attorneys would be held in abeyance sine die.

On June 18, 2018, plaintiff commenced this action by summons with notice. (NY St Cts Elec Filing [NYSCEF] Doc Nos. 65, 70.) Then, on June 21, 2018, Greenleaf defendants filed a notice of removal of the action from this court to the Southern District of New York (SDNY) (NYSCEF Doc Nos. 2, 3). On September 13, 2018, during an appearance before the SDNY on plaintiff's motion for an order remanding the action to this{**73 Misc 3d at 1113} court, plaintiff's counsel advised the court that he intended to provide it with "the complaint we would have filed in state court in order for you to be able to determine the issues on the remand motion." (NYSCEF Doc No. 7, exhibit 5 at 111-118.) Counsel for Greenleaf defendants consented to the filing of the complaint, with the addition of one James Katzman as a party-defendant. (Id.) Whereupon, on September 17, 2018, plaintiff served defendants with a verified complaint which includes Katzman as a party-defendant. (Id., exhibit 6.)

Defendant Handelman served his answer on February 6, 2019 (NYSCEF Doc No. 8 at 310-461), and on the same day, on application of Greenleaf defendants, the action was transferred to the Middle District of Pennsylvania (MDP) (NYSCEF Doc No. 7, exhibits 9, 10), where MHS defendants filed their answer to the verified complaint. (NYSCEF Doc No. 8 at 462-543.) On March 6, 2019, Greenleaf PC filed a motion to dismiss the verified complaint. (NYSCEF Doc No. 8 at 238.)

On August 20, 2019, with leave granted by the MDP, plaintiff filed a first amended complaint which includes Hatfield and The Hershey Trust Company as Trustee for The Milton Hershey School Trust (MHT) as party-defendants. (NYSCEF Doc No. 7, exhibits 16, 17.) On September 3, 2019, the Greenleaf defendants and the MHS defendants, including MHT and Katzman, moved to dismiss the first amended complaint, and on November 26, 2019, Hatfield followed suit. (NYSCEF Doc No. 8 at 242-243.)

Then, on finding that federal subject matter jurisdiction was lacking, by order dated September 28, 2020, the MDP remanded the action to this court (NYSCEF Doc Nos. 5, 8, exhibit 23) where, on December 1, 2020, the action was again, on application of Greenleaf defendants, removed to the SDNY. (NYSCEF Doc No. 6.)

By order dated March 5, 2021, the SDNY judge remanded the action to this court (NYSCEF Doc No. 7 at 22) and opined that "the federal proceedings in this case (including the [first amended complaint])" were "a nullity for lack of subject matter jurisdiction" and that, as the remand "returned the case to the position it occupied" in 2018 when it was first removed, the summons with notice is the operative pleading, not the first amended complaint. By notices dated March 24, 2021, three attorneys for Greenleaf defendants appeared in this action (NYSCEF Doc Nos. 10-12), and by notice dated March 25, 2021, an attorney appeared for MHS defendants. (NYSCEF Doc No. 13.){**73 Misc 3d at 1114}

A. Contentions

1. Plaintiff (NYSCEF Doc Nos. 46-59)

As the parties had engaged in extensive litigation in the federal courts, plaintiff maintains that an order clarifying the procedural status of this action is warranted. He asks that the first amended complaint filed in the MDP (NYSCEF Doc No. 50) be deemed the operative pleading here, that all defendants named in the first amended complaint remain in the action post-remand, and that the clerk be directed to update the docket and caption to "reflect the case at the time of its remand [from MDP]." That the action had been remanded, he contends, should not constitute a de facto dismissal of parties or claims. Additionally, plaintiff seeks authorization to serve Hatfield via email, claiming that Hatfield consented to it. (NYSCEF Doc Nos. 51-58.)

2. Defendants (NYSCEF Doc Nos. 76, 89)

In opposition, MHS defendants argue that there is no legal basis for plaintiff's motion as in effect, he improperly seeks legal advice from the court on how to proceed. In any event, they contend that once the MDP determined that there was no federal subject matter jurisdiction over plaintiff's claims, the order granting him leave to file the first amended complaint became a nullity, as does its product. They also rely on the opinion of the SDNY that the summons with notice constitutes the operative pleading. (NYSCEF Doc No. 71.) And, as the summons with notice is the operative pleading, they maintain that pursuant to CPLR 3012 (b), the time within which plaintiff was required to file a complaint expired on April 13, 2021, 20 days after the notices of appearance were filed on their behalf, and having failed to file his complaint by April 13, dismissal is required pursuant to CPLR 3012 (b).

In addition to MHS defendants' arguments, Greenleaf defendants complain that their rights are prejudiced by plaintiff's conduct, as they cannot assert their defense of a lack of [*3]personal jurisdiction until after service of a complaint, and that plaintiff is attempting to obfuscate that his tort claims are time-barred as they do not relate back given his neglect to prosecute.

3. Plaintiff's Reply (NYSCEF Doc No. 111)

In reply, plaintiff asserts that defendants were served with his verified complaint in the SDNY on September 17, 2018{**73 Misc 3d at 1115} (NYSCEF Doc No. 7), and with the first amended complaint in the MDP on August 20, 2019, both of which were docketed in this court by the clerk before defense counsel filed their notices of appearance, thereby rendering CPLR 3012 (b) inapposite given defendants' actual notice of his claims. He alleges that CPLR 3012 (b) has never been applied in the circumstances presented here.

In denying reliance on orders issued by the federal courts for the relief he seeks, plaintiff claims to rely on defendants' conduct while in federal court, where they filed pleadings which are not nullified upon remand. Thus, having served and exchanged pleadings in federal court, plaintiff claims that defendants are estopped from seeking dismissal pursuant to CPLR 3012 (b), as they are by having failed to demand service of a complaint when the action was commenced. He also relies on CPLR 2001 to the extent that it excuses his technical, nonprejudicial omissions to change the caption of his federal complaint to state court and file the complaint he had served on defendants, which was docketed in this court. He also maintains that the discretion afforded under CPLR 3012 (d) allows him to file a new complaint in the interests of justice. Plaintiff denies having failed to prosecute this action or that his conduct reflects such a failure and asks that his federal pleadings and filings and his affidavit be deemed sufficient to demonstrate the merit of his claims.

B. Analysis

To add a party to pleadings, the movant must ordinarily file a motion pursuant to CPLR 3025; to obtain approval for an alternative mode of service, the movant must file a motion pursuant to CPLR 308 (5) or 315; and to obtain an extension of time for filing a complaint following a notice with summons, where a notice of appearance triggers the obligation to file it, the movant must file a motion pursuant to CPLR 3012 (d).

Although plaintiff seeks to sidestep such motion practice, the interests of judicial economy and the avoidance of delay, effort, and expense resulting from motion practice militate against requiring the filing of a more appropriate motion. Such interests, in addition to the comity between federal and state courts, constitute strong arguments for permitting a party's reliance, in an action remanded to state court, on pleadings filed by right or on consent in the federal court later found to be without subject matter jurisdiction. (See e.g. State v Hess Corp., 159 NH 256, 260, 262-263, 982 A2d 388, 391-394 [2009]{**73 Misc 3d at 1116} [judicial economy and efficiency, avoidance of delay, effort, and expense resulting from requiring party to duplicate pleadings, preference for deciding cases on merits, and acknowledgment of comity between federal and state courts warrant giving pleadings filed in federal court effect on remand]; JurisDictionUSA, Inc. v Loislaw.com, Inc., 357 Ark 403, 183 SW3d 560 [2004] [under retroactively applied amended rule of civil procedure, defendant not required to re-file in state court an answer filed in federal court during removal, thereby fairly avoiding default judgment].) Moreover, a refusal to entertain plaintiff's motion could result in a default, which is not favored, especially where plaintiff has manifested nothing short of a rabid desire to pursue this action.

Accordingly, while federal decisions, orders, and rulings obtained during a period of removal to federal court are annulled on remand to state court where the federal court lacked [*4]subject matter jurisdiction (Gutierrez v Fox, 141 F3d 425 [2d Cir 1998]), pleadings that are not the product of a court order are not annulled. (Hess Corp., 159 NH at 260, 982 A2d at 391-392.)

New York authority on the impact of a remand in the circumstances presented here is not as persuasive as more recent authority in other states, and it is worthwhile to observe that the SDNY, in opining that in these circumstances, all that occurred in the federal court is a nullity, relied on an opinion of a New York State trial court in City of New York v New York Jets Football Club (90 Misc 2d 311 [Sup Ct, NY County 1977]). There, the court stated that "[t]he cases uniformly hold that upon remand, the action resumes its position 'as though no removal had ever been attempted.' " (Id. at 314.) The issue before the court, however, was not the impact of a remand from a federal court without subject matter jurisdiction but whether the filing of a petition to remove a state court action to federal court nullified a state court order issued before the petition was filed. (Astoria Fed. Sav. & Loan Fid. N.Y. FSB v Lane, 22 Misc 3d 1108[A], 2008 NY Slip Op 52611[U] [Sup Ct, NY County 2008], affd 64 AD3d 454 [1st Dept 2009].) Moreover, Astoria Fed. Sav., along with a trial order issued in Moore v Lucky Ins. Co. Ltd. (1992 WL 12665444 [Sup Ct, NY County 1992]), appear to be the sole opinions citing New York Jets that remotely address the issue presented here but each falls short of constituting its progeny.

Additionally, the cases relied on by the court in New York Jets are not only long in the tooth, as is New York Jets itself,{**73 Misc 3d at 1117} but they do not clearly support the nullification of all that transpired in the federal court on removal even though it lacked subject matter jurisdiction. (See Railroad Co. v Koontz, 104 US 5, 15-16 [1881] [question before Court was whether, if state court refuses to remove, must party seeking removal, to prevent appearance in federal court from operating as waiver, show state court that he is not in default in entering record and docketing case in federal court following removal; Court observed in dicta that if removal is reversed, action would be remanded to state court "to be proceeded with there as if no removal had been had"]; Doerr v Warner, 247 Minn 98, 106, 76 NW2d 505, 512 [1956] [effect of remand is not to invest state court with new jurisdiction but merely to revive jurisdiction previously acquired but held in abeyance]; Leslie v Floyd Gas Co., 11 F Supp 401, 402 [ED Ky 1935] [court's general power over its own judgments, orders, and decrees undeniable; state court must exercise jurisdiction over case as pending action as though no removal attempted].) It is difficult to discern from these opinions an affirmative holding that a pleading filed as of right or on consent in federal court on removal is invariably nullified on remand and, practically speaking, the absence of subject matter jurisdiction has no impact on such pleadings. Thus, in light of the more recent authority cited above for relaxing the old saw that everything occurring in the federal court becomes a nullity on remand, the dicta set forth in New York Jets and by the SDNY is not persuasive and in any event, it is not binding on this court.

Consequently, plaintiff's first amended complaint, the product of the MDP order, is nullified on remand, whereas the verified complaint that he filed in the SDNY with the intent to file it here absent removal and with defendants' consent is not. There being no legally sufficient obstacle to deeming the verified complaint filed in the SDNY as the operative pleading here, it is so deemed. And, as the verified complaint was filed in the SDNY long before the triggering of CPLR 3012 (b) in March 2021, defendants' motions to dismiss are meritless and need not be addressed.

Thus, for all of the foregoing reasons, it is hereby ordered that plaintiff's motion for orders confirming the parties, correcting the [*5]caption, confirming the operative pleading, and approving the form of service (mot seq No. 001) is granted solely{**73 Misc 3d at 1118} to the extent that the verified complaint filed in the SDNY on September 17, 2018, is deemed the operative pleading and is otherwise denied without prejudice to the filing of appropriate motions relating to the addition of party-defendants, the caption, and alternative service; it is further ordered that defendants' motions to dismiss (mot seq Nos. 002, 003) are denied in their entirety; and it is further ordered that defendants have 30 days from the date of this decision and order to file their answers.