Astoria Fed. Sav. & Loan Fid. NY FSB v Lane
Annotate this CaseDecided on December 4, 2008
Supreme Court, New York County
Astoria Federal Savings and Loan Fidelity New York FSB, et al., Plaintiff,
against
Marilyn Lane, Defendant.
133779/94
Defendant is Pro Se
Marilyn Lane
220 East 60th Street New York, NY 10022
212-207-8528
Deft:
Mullooly, Jeffrey, Rooney/Flynn
4 Bridge Street
Glencove, NY 11542
516-759-8528
Alice Schlesinger, J.
This decision consolidates for dispositional purposes only two motions made by
the defendant Marilyn Lane in two related foreclosure actions. The first proceeding, entitled
Astoria Federal Savings & Loan, et al., v. Lane, Index No. 133779/94, involves
condominium Unit 7B at 220 East 60th Street in Manhattan. The second action, bearing the same
name under Index No. 133781/94, involves condominium Unit 3A at the same premises.
In both cases Justice Carol Arber granted a motion to strike defendant's answer and issued a judgment of foreclosure and sale in the summer of 1997. In both cases the units were subsequently sold to bona fide purchasers. Ms. Lane has now moved in both cases to vacate the judgment of foreclosure and sale. In the earlier case, this Court granted the current owner Frances Turner leave to intervene by decision and order dated November 17, 2008. In the second case, the current owners Antoninus and Mercedes Marchena have cross-moved to intervene. The Marchenas are clearly interested parties, and Ms. Lane has not opposed intervention. Therefore, they are hereby granted leave to intervene and their papers will be considered on the merits.
The issue presented in Ms. Lane's motions is whether the New York State Supreme Court lacked jurisdiction to enter the judgment of foreclosure and sale because Ms. Lane had filed in the Southern District a petition to have the case removed to federal court. To determine that question, one must review the timeline of events.
Astoria commenced the first action regarding Unit 7B in December of 2004. Ms. Lane served an answer, which was stricken by the court on February 6, 1996. On May 9, 1997, Ms. Lane filed in the Southern District a Petition for Removal to federal court, asserting that the action involved questions of federal law. On July 10, 1997, Justice Carol Arber signed a judgment of foreclosure.
On July 23, 1997, Astoria filed a motion in federal court to dismiss Ms. Lane's Petition for Removal. U.S. District Judge Louis Stanton granted that motion and issued an Order of Remand on July 25, 1997 denying Ms. Lane's Petition for Removal and remanding the action to the Supreme Court, New York County. Some months later, the referee in foreclosure transferred title following the court-ordered sale. [*2]
The timeline and events regarding the second action are
comparable. The key fact, which is undisputed in both cases, is that Ms. Lane's Petition for
Removal had been filed in federal court and was still pending when Justice Arber signed the
judgment of foreclosure and sale in state court.
Discussion
Ms. Lane asserts that the filing of her Petition for Removal in federal court divested the state
court of jurisdiction to issue a judgment of foreclosure until Justice Stanton issued his Order of
Remand. In support of that assertion, Ms. Lane cites 28 USC §1446, subd.(d) [formerly
subd. (e)] which provides in relevant part that:
Promptly after the filing of such notice of removal of a civil action the defendant or
defendants shall give written notice thereof to all adverse parties and shall file a copy of the
notice with the clerk of such State court, which shall effect the removal and the State court shall
proceed no further unless and until the case is remanded.
Here, Ms. Lane has presented evidence which suggests that she did file a copy of her petition with the County Clerk of the Supreme Court, and she asserts that she did mail a copy to her adversaries as well, though there is some issue as to whether the mailing was properly completed and received. It does not appear, however, that Ms. Lane sent a copy of the petition to Justice Arber. Certainly, neither the state nor the federal court issued a stay of the state court proceedings.
The real question, however, is the effect of the filing of the Petition for Removal on the state
court action. The United States Supreme Court discussed the issue in Madisonville Traction
Company v. St. Bernard Mining Company, 196 US 239, 245 (1905), stating that:
It is well settled that if, upon the face of the record, including the petition for
removal, a suit does not appear to be a removable one, then the State Court is not bound to
surrender its jurisdiction and may proceed as if no application for removal had been made
(citations omitted).
Ms. Lane argues that the case is a removable one, citing Beneficial National Bank v. Anderson, 539 U.S. 1 (2003). She also submits a document indicating that Judge Stanton wrote a notation to the clerk in the Southern District indicating that the pro se filing by Ms. Lane could be accepted. However, allowing papers to be filed does not constitute a finding that the action is removable. What is more, Beneficial is readily distinguishable as it involves the issue of usury. In any event, this Court need not analyze the issue whether a state court foreclosure action is removable to federal court, because such an analysis would not resolve the dispute in this case.
The key to the resolution of this dispute may be found in Judge Harold Baer's discussion in
City of New York v. New York Jets Football Club, Inc., et al., 90 Misc 2d 311 (Sup. Ct.,
NY Co. 1977). The issue presented was 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. The Court
answered with a resounding "No," explaining (at p. 314) that:
To hold otherwise would be ludicrous. It would mean that a defendant could
unilaterally void a State court order and, by merely filing a petition, oust the State court of
jurisdiction. The statute does not so provide. Rather, until removal is finally determined, the Sate
court's jurisdiction is not terminated but held in abeyance by the statute's direction that the State
court refrain from action (US Code, tit 28, § 1446, subd [e]). The cases uniformly hold that
upon remand, the action resumes its position "as though no removal had ever been attempted"
Railroad Co. v Koontz, 104 U.S. 5, 16; Leslie v [*3]Floyd Gas Co., 11 F Supp 401; Doerr v Warner, 247
Minn 98, 106.
In the case at bar Justice Arber issued the judgment after the removal petition had been filed
but before it had been determined. As Judge Baer explained, the result is the same whether the
state court acted before or after the petition for removal was filed.
The Supreme Court has recognized this basic rule even to the extent of finding valid
after remand a default judgment entered by the State court after the filing of the petition for
removal (Roberts v Chicago, St. Paul & Minneapolis Omaha Ry. Co., 48 Minn 521, affd
164 U.S. 703). As characterized by the Supreme Court in the Railroad Co. case, (supra)
the filing of the petition is merely an "attempt" to transfer jurisdiction. A defendant's unilateral
action does not accomplish that transfer.
These principles directly apply here to compel the denial of Ms. Lane's motions. By order
dated July 25, 1997, Judge Stanton summarily dismissed Ms. Lane's removal petition, stating
that:
The petition for removal failing to comply with 28 U.S.C. §1446(a) which
requires "a short and plain statement of the grounds for removal," and showing no non-frivolous
basis for jurisdiction in this court or for this court's interference with pending proceedings in the
Supreme Court of the State of New York, County of New York, it clearly appears on the face of
the papers submitted that removal should not be permitted and that this court should accordingly
make an order for summary remand. 28 U.S.C. §1446(c) (4).
Accordingly, this action is remanded to the Supreme Court of the State of New York,
County of New York.
Thus, while the state court's July 10, 1997 foreclosure judgment may not have been enforceable immediately upon issuance, all barriers to enforcement were lifted when Judge Stanton issued his remand order and revived the state court's jurisdiction in full. As a result, plaintiff was entitled to proceed with the foreclosure sales some months later, and no basis has been stated by Ms. Lane for vacating the judgments. Further, the equities militate against vacating the judgments more than ten years after their entry, particularly considering that bona fide purchasers have been in possession for several years.
Accordingly, it is hereby
ORDERED that the defendant's motions are in all respects denied, without costs.
This constitutes the decision and order of this Court.
Dated: December 4, 2008
_________________________
J.S.C.
Defendant is Pro Se
Marilyn Lane
220 East 60th Street
[*4]
New York, NY 10022
212-207-8528
Deft:
Mullooly, Jeffrey, Rooney/Flynn
4 Bridge Street
Glencove, NY 11542
516-759-8528
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