This "action" (see CPLR 103[a]-[c])^[FN1] was commenced on September 6, 2024 by the filing of a document denominated a "Petition" in NYSCEF, but styled as a "Motion to Quash NYS OAG Subpoenas Pursuant to CPLR R.2304" per the document itself (see NYSCEF Doc No. 1). The purported motion, dated September 6, 2024, seeks to quash certain subpoenas issued by Respondent New York State Attorney General Letitia James (hereinafter "Respondent") to Petitioners Blue Line Sports LLC and Woods and Waters (hereinafter "Petitioners"). More specifically, the motion seeks an order: (1) quashing the subpoenas at issue dated June 26, 2024; (2) in the alternative, staying the proceeding pending final resolution of ongoing federal civil rights litigation; (3) in the alternative, permitting Petitioners to amend their application to include constitutional challenges; (4) of protection pursuant to CPLR 3103; (5) awarding costs and fees; and (6) such other and further relief as the Court deems just.

By Order to Show Cause signed at Respondent's request on September 24, 2024, the Court directed the parties to show cause why the matter should not be dismissed pursuant to [*2]CPLR 304, 306-a, or 402, or, in the alternative, why the matter should not be scheduled for a conference. Presently before the Court is the Order to Show Cause referenced above, and in resolving said application, the Court read and considered NYSCEF Doc Nos. 1-16, 18, 21-23, 26, and 28-32. Upon reading and considering same, the Court is compelled to deny the instant application for jurisdictional reasons.

The Court need not recite the factual underpinnings of this case as there are multiple technical/jurisdictional issues which preclude the Court from reaching the merits of same. The chief problem lies in the form the action was brought insofar as the papers before the Court cannot be said to be in the form of a special proceeding (see CPLR Article 4), and nor are they in the form of a plenary action. This issue necessarily results in an improper commencement of this matter and a failure to obtain jurisdiction over Respondent. As noted above, though NYSCEF Doc No. 1 is labeled a "Petition" in NYSCEF — the label utilized does not matter to the Court so much as the substance of the paper — the paper itself is denominated a "Motion". Upon review, NYSCEF Doc No. 1 and the papers in support are appropriately deemed a "motion" pursuant to CPLR 2211 since (besides the obvious fact that this is what the paper itself is described as) what is sought is an order of the Court.^[FN2]

As one learned commentator on the law has noted:

The CPLR governs in both actions and special proceedings. The reader who knows what a motion is can quickly learn the mechanics of a special proceeding. An action is the plenary prosecution of a right, seeking a final judgment. A motion is generally an application made within the action for some item of incidental relief, usually involving some step in the processing of the action while on its march to a final judgment [emphasis added].

(David D Siegel & Patrick M. Connors, New York Practice § 4 [6th ed June 2024 Update]). An action — a plenary action that is, as distinguished from a special proceeding — is commenced by summons and complaint or a summons with notice (see CPLR 304[a]). Here, no summons and complaint or summons with notice was ever filed or served. This being the case, no plenary action is pending, same never having been commenced. And if there is no underlying plenary [*3]action, a motion cannot be made since motions are made within pending actions (to include special proceedings) (see e.g. CPLR 406; 7804[f]). Further, it is axiomatic that absent service of a valid summons and complaint or summons with notice, the Court is without personal jurisdiction and thus without power to act (Preferred Mutual Ins. Co. v Lorenzo, 183 AD3d 1091, 1093 [3d Dept 2020]).

The "action" before the Court cannot properly be called a special proceeding either (see CPLR 103[b]; CPLR Article 4), even though it appears to the Court that the instant relief should have been sought by way of such a proceeding, as will be detailed more fully below. The action cannot appropriately be called a special proceeding because special proceedings are commenced by Petition pursuant to CPLR 304(a) (see also CPLR 402) and, as discussed above, there is no Petition presently pending before the Court; rather, what was filed was a motion and it was simply denominated a "Petition" in NYSCEF.^[FN3] Thus, the instant "action" is no action at all per CPLR 103(a) and 105(b) and is not appropriately before the Court, whatever else may be said of it.

Even if the matter could appropriately be deemed a special proceeding commenced by Petition, as discussed above, the issues with the form of the proceeding result in a lack of personal jurisdiction insofar as CPLR 403(c) and (d) require the service of a notice of petition or order to show cause (in lieu of a notice of petition) which have the same "jurisdiction-getting" effect as does a summons in a plenary action (see David D Siegel & Patrick M. Connors, New York Practice § 202 [6th ed June 2024 Update]; see also Joseph M. McLaughlin, Prac Commentaries, McKinney's Cons Laws of New York, CPLR C103:2 [distinguishing between an action and a special proceeding while noting, "[a]n action begins with the service of a summons and is followed by a complaint. A special proceeding begins with the service of a notice of petition (or order to show cause) which must be accompanied by a petition"). In the instant matter, Petitioners never filed or served a notice of petition or order to show cause, and thus, even framed as a special proceeding, the Court lacks personal jurisdiction over Respondent (Preferred Mutual Ins. Co. v Lorenzo, 183 AD3d at 1093).

Having discussed the form and jurisdictional issues of the instant matter, the Court would be remiss if it failed to note that CPLR 103(c) generally disfavors valuing form over substance and permits the Court to convert an action commenced by summons and complaint or summons with notice into a special proceeding (or vice-versa), or a motion into a special proceeding (or vice-versa) on the theory that dismissal of potentially meritorious cases should not eventuate simply because of improper form. However, the Court's exercise of this power is explicitly premised upon the Court's first having "obtained jurisdiction over the parties" (CPLR 103[c]). As discussed, the issues with form in the case at hand give rise to a lack of personal jurisdiction and thus CPLR 103(c) is of no use to Petitioners here. Indeed, as has been stated on this subject:

It is well to note that the power to transmute an action into a special proceeding or vice versa is conditioned upon there being jurisdiction. If the court lacks jurisdiction over the parties, it lacks power entirely and can do nothing. Where, for example, a special proceeding is commenced by the service of a petition alone, no jurisdiction is acquired. New York State Restaurant Ass'n v. Board of Standards & Appeals, 1963, 19 [*4]AD2d 912, 244 N.Y.S.2d 15. Accordingly, in such a case a court would be left with no alternative but outright dismissal.

(Joseph M. McLaughlin, Prac Commentaries, McKinney's Cons Laws of New York, CPLR C103:3). Thus, in the instant case, the Court is left with dismissal as its only option owing to the improper commencement of the action pursuant to CPLR 304(a) and the resultant failure to serve a petition together with a notice of petition or order to show cause in accordance with CPLR 403, all of which results in the Court's having failed to obtain jurisdiction over Respondent. Moreover, though Petitioners request that they be permitted to correct the errors discussed above, the Court is without power to grant this relief. While the Court's reasoning behind its inability to utilize its powers of conversion under CPLR 103(c) apply equally here, the Court would add that even if it were to consider the use of powers granted pursuant to some other section of law — including but not limited to CPLR 2001, which grants the Court the power to correct mistakes, omissions, defects, or irregularities on such terms as may be just — leave to correct the issues noted herein or leave to replead is not a remedy available to Petitioners inasmuch as it has been held in no uncertain terms that provisions such as CPLR 2001 "cannot be invoked to remedy a jurisdictional defects" (McCray v Annucci, 205 AD3d 1273, 1275 [3d Dept 2022]). To put it simply, the Court's lack of personal jurisdiction over Respondent renders it without power to act in this matter. Indeed, even the apparent lack of prejudice or surprise to Respondent in granting Petitioner the ability to correct the irregularities discussed above is irrelevant owing to the jurisdictional issues present. Even if the Court were not without power to act, Respondent is also correct that granting leave to correct the irregularities discussed would not be appropriate insofar as there is no cross-motion pending before the Court for such relief, as is required by CPLR 2215.

Finally, as indicated above, notwithstanding the fact that CPLR 2304 speaks entirely in terms of a "motion" to quash, a special proceeding appears to be the appropriate vehicle for the relief sought herein. This view is supported by Kapon v Koch wherein the petitioner, a non-party to ongoing New York State litigation, sought to quash subpoenas issued by a party to the action and did so by way of a special proceeding since resort to motion practice in the underlying action was unavailable to the non-party (see Kapon v Koch, 23 NY3d 32, 34-35 [2014]). Resorting again to the commentaries on the relevant sections of law, the Court's view finds even more support in a well-reasoned discussion regarding the somewhat misleading language of CPLR 2304. The discussion is so directly on point and so encapsulates the Court's concerns with the instant application that it deserves to be quoted at length.

Assuming that a court application is ripe—i.e., the subpoena is "not returnable in a court" and an unsuccessful "request" for withdrawal or modification of the subpoena under CPLR 2304 has been made—an application to quash must be made to the supreme court. But what form shall the application to quash take . . . ?

CPLR 2304 says explicitly that the application shall be by "motion." If the subpoena is returnable in a court, the main procedural steps for the motion to quash are well prescribed by the CPLR: service may be made on the party's lawyer who issued the subpoena, it can be made by mail, etc., all as prescribed by CPLR 2214 and 2103. See Practice Commentary CPLR 2214, C2214:8 ("Notice Requirements; Minimum Period; Service of Answering Papers"). But when a motion to quash a subpoena not returnable in a judicial action or special proceeding is necessary, such as in [*5]an administrative proceeding or an arbitration, additional questions arise about the application. Since there is no existing judicial context to house the motion, jurisdiction before the supreme court must be secured and the motion papers need to be the papers whose service secures it. Does this mean that the papers on the motion to quash need to be served in the same manner as a summons, i.e., have to follow the service rituals of CPLR 308 and its jurisdiction-getting compatriots in that article [emphasis added]?

The statute has no definitive answers on these questions, but the lawyer who would keep everything neat and clean may indeed do best to commence a special proceeding against the one who issued the subpoena and serve the motion papers via CPLR 308's summons-serving methods, troublesome as that may be, on all interested persons. As a special proceeding, it would have the procedural guidance of CPLR 403, including the main instruction of that statute—to make service in the same manner as a summons. Proceeding in this fashion will also deny the other side a procedural distraction [emphasis added] . . . .

Even so, we would hesitate to recommend mere mail service. Courts are not adventurous on these points and unless the legislature offers such authority, or the Court of Appeals supplies it, the lawyer does best in doubtful cases to use personal service to bring on a court application to quash a non-judicial subpoena, especially when the application is the first entry into the court system. For subsequent applications, if needed, a better case can be made to support mere mail service based on the judicial jurisdiction secured by personal service in the first one [emphasis added].

Having expounded at length on the subject of applications to quash subpoenas, the Court finds it somewhat lamentable that the plain text of CPLR 2304 provides so little guidance to both bench and bar that extensive resort to commentaries on the law and treatises is made a practical necessity before an application pursuant to said section can even be appropriately contemplated or intelligently reviewed. The opaque language of CPLR 2304 appears all the more unnecessarily impenetrable when compared to a section of law such a CPLR 7502, which in no uncertain terms makes clear that "[a] special proceeding shall be used to bring before a court the first application arising out of a . . . controversy which is not made by motion in a pending action [emphasis added])." This is beside the point, however. CPLR 2304, in its present form, is not quite so accommodating, and for the reasons stated herein, the Court is compelled to dismiss the instant action for want of jurisdiction owing to want of proper form.

To the extent that the Court has not expressly addressed an issue or argument raised, to include that of the potential misjoinder of parties under CPLR 1002, they have been examined and found to be without merit or rendered academic, based upon the findings and determinations made herein.^[FN4] To the extent the Court has not addressed any requested relief, same is denied.

ACCORDINGLY, IT IS HEREBY

ORDERED, that Respondent's Motion, brought on by Order to Show Cause dated September 24, 2024, is GRANTED for the reasons set forth herein; and it is further

ORDERED, that the instant action is DISMISSED; and it is further

ORDERED, that this original Decision and Order shall be filed with the County Clerk by the Court via NYSCEF, and pursuant to CPLR 2220, Respondent's counsel shall serve a copy of this Decision and Order, together with Notice of Entry, on all persons and entities entitled to notice under the law, and thereafter file proof of service with the County Clerk's Office.

The Foregoing Constitutes the Decision and Order of the Court