B. T. Productions, Inc. v. Barr

• Decision Date: 12 November 1976
• Citation: 54 A.D.2d 315,388 N.Y.S.2d 483
• Court: New York Supreme Court — Appellate Division
• Parties: Application of B.T. PRODUCTIONS, INC., d/b/a Town & Country Dinner Theatre, and Anthony Della Pietra, Individually, Petitioners, v. Hon. Culver K. BARR, Judge of the Monroe County Court, et al., Respondents.

Page 483

388 N.Y.S.2d 483

54 A.D.2d 315

Application of B.T. PRODUCTIONS, INC., d/b/a Town & Country

Dinner Theatre, and Anthony Della Pietra, Individually, Petitioners, v. Hon. Culver K. BARR, Judge of the Monroe County Court, et

al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Nov. 12, 1976.

Palmiere, Passero & Crimi, Rochester, for petitioner (Norman Palmiere, Rochester, of counsel).

Maxwell B. Spoont, Deputy Atty. Gen., Albany, for respondent NYS Organized Crime Task Force (John Mansour, Rochester, of counsel).

William J. Stevens, County Atty., Rochester, for respondent Barr (Michael Consedine, Rochester, of counsel).

Before CARDAMONE, J.P., and MAHONEY, DILLON, GOLDMAN and WITMER, JJ.

CARDAMONE, Justice Presiding:

On August 11, 1976 approximately twenty agents of the Organized Crime Task Force (OCTF) entered the premises of Town and Country Dinner Theatre in East Rochester, New York, conducted an extensive eight-hour search, and seized the records of petitioners, B.T. Productions, Inc. which conducts its restaurant and theatre business under the name of Town and Country Dinner Theatre and Anthony Della Pietra, its President. The business records seized included cancelled checks, lease agreements, unsold Town and Country Dinner Theatre admission tickets and reservation books, gift certificates, accounts receivable and payable, income tax returns, financial statements, checkbook stubs, invoices, file folders and their contents, bank deposit slips, contracts of entertainers, admission ticket receipts and cash register tapes.

The authority for this search and seizure came from a warrant applied for by the OCTF on August 10, 1976 and issued that day by respondent, Monroe County Court Judge, Culver K. Barr. The search warrant return was provided to Judge Barr on August 12, the day after the seizure, and he signed an order directing that the seized records be retained in the possession of the OCTF, subject to the further order of County Court. Petitioners' motion to obtain a copy of the search warrant application was denied by respondent Barr on August 20, 1976. Proceedings in Federal District Court were thereafter instituted. ¹

On September 2, 1976 petitioners commenced as an original action in this court an Article 78 proceeding in the nature of prohibition seeking to (1) restrain the respondents OCTF and Barr from acting in excess of their lawful jurisdiction; (2) vacate the search warrant issued; (3) compel the return of the seized records. Respondents have moved to dismiss this Article 78 proceeding arguing (1) that this court lacks subject matter jurisdiction; (2) that the pending Federal action in which, respondents assert, petitioners seek the same relief acts as a bar; (3) that the petition fails to state a cause of action for prohibition because there is an insufficient showing of gravity of harm to petitioners arising from the seizure and retention of their business records; (4) that this court lacks personal jurisdiction over OCTF and its personnel.

Before dealing with the merits of the respective parties' contentions, it is necessary to decide as a threshold question whether the extraordinary remedy of prohibition is available to petitioners; if not, we need go no further. Only if such relief is available do we address the merits (Matter of Dondi v. Jones, 40 N.Y.2d 8, 386 N.Y.S.2d 4, 351 N.E.2d 650; LaRocca v. Lane, 37 N.Y.2d 575, 376 N.Y.S.2d 93, 338 N.E.2d 606; Matter of State of New York v. King, 36 N.Y.2d 59, 364 N.Y.S.2d 879, 324 N.E.2d 351).

Originally used by the English Kings to curb the vast powers of ecclesiastical courts, the writ of prohibition has since evolved into a basic protection for the individual in his relations with the state (Matter of Dondi v. Jones, supra, 40 N.Y.2d at 12, 386 N.Y.S.2d at 7, 351 N.E.2d at 653; 23 Carmody Wait 2d, N.Y.Civ.Prac., § 145:205). Its origins are firmly rooted in the common law where it first became important as a device used by the King's Bench to control inferior tribunals and bodies in sixteenth century Tudor England (Plucknett, A Concise History of the Common Law, 2nd Ed. (1936) pp. 156--157). It has been for many years a statutory remedy where one of the questions that may be raised is 'whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction' (CPLR 7803, subd. 2).

Recent decisions of the Court of Appeals erect a framework within which the issue of the availability of prohibition may be determined. It is set forth as follows: (1) this extraordinary remedy lies only where there is a clear legal right under CPLR 7803 (subd. 2); (2) it is a direction to an inferior judicial tribunal or body to restrain judicial, as distinguished from legislative, executive or ministerial action; (3) it is issued not as a matter of right, but only in the sound discretion of the court. The exercise of that discretion is to be concerned with several important, but not controlling, factors among which are the gravity of the harm caused and the availability of other methods of redress. Even where more traditional remedies are technically available but would be inadequate to prevent the harm, prohibition may lie where it furnishes more complete relief; (4) it is never available, however, to prevent errors at trial, no matter how grievous, since an orderly administration of justice requires that litigation errors be left to review by appeal and not attacked in a collateral proceeding (Matter of Dondi v. Jones, supra; LaRocca v. Lane, supra; Matter of State of New York v. King, supra). We conclude that within the framework of these guidelines petitioners have established that respondents OCTF and Barr acted without or in excess of jurisdiction and there is, therefore, a 'clear legal right' to the remedy.

We next consider whether in the exercise of sound judicial discretion the writ should be issued. The gravity of harm to the petitioners from the conduct of respondents is not diminished by the fact that the OCTF has offered petitioners access to their own business records on three different occasions. Access gratuitously offered is not a substitute for the right of petitioners to maintain possession of their corporate books and records. The gravity of harm in being subjected to a search and seizure executed under an allegedly void search warrant, the disruption of internal business operations, and the public stigma attached to being targets of an OCTF investigation cannot be considered insubstantial. Another factor to be considered is whether the excess of power can be adequately corrected on appeal or by other traditional remedies at law or equity. Respondents claim that petitioners failed to avail themselves of a method of seeking review in this case by neglecting to move to vacate the search warrant and, if such motion was denied, to appeal from the order of denial--and that this failure precludes prohibition. We note, however, that the right of review by appeal in criminal matters is governed exclusively by statute and that the denial of a motion to vacate a search warrant is an intermediate order, not appealable at the pre-trial stage (People v. Ruth, 250 App.Div. 819, 294 N.Y.S. 753; People v. Gold, 65 Misc.2d 873, 319 N.Y.S.2d 296; People v. Gingello, 62 Misc.2d 577, 308 N.Y.S.2d 1019; People v. Nichols, Sup., 222 N.Y.S.2d 146.). Further, there exists no provision in the Criminal Procedure Law which authorizes a motion to vacate a search warrant; nor is there any statutory provision permitting an appeal in such a proceeding from an order denying an application to vacate (see, Matter of Police Benevolent Assn. of the New York State Police, Inc. v. Gagliardi, 9 A.D.2d 929, 195 N.Y.S.2d 109, affd. 9 N.Y.2d 803, 215 N.Y.S.2d 513, 175 N.E.2d 170, mot. to amd. remit. den. 10 N.Y.2d 749, 219 N.Y.S.2d 604, 177 N.E.2d 47, cert. den. 368 U.S. 929, 82 S.Ct. 365, 7 L.Ed.2d 192), nor may petitioners be relegated to a motion to suppress the evidence seized since such motion can only be made 'after the commencement of the criminal action in which such evidence is allegedly about to be offered . . .' (CPL, § 710.40, subd. 1). In the instant case no criminal action is pending, nor have any indictments been returned. Thus, it is plain that petitioners have no remedy by way of appeal. In addition, we believe that prohibition would furnish a more complete remedy.

Finally, in exercising our discretion we are mindful of the ancient roots of this writ and that it should not lightly be issued to correct a court acting in error regarding substantive or procedural law. Prohibition should only issue where a court commits acts in excess of its jurisdiction so serious as to constitute a gross abuse of power and which require summary correction (LaRocca v. Lane, supra, 37 N.Y.2d at 580--581, 376 N.Y.S.2d at 98--99, 338 N.E.2d at 610--611). OCTF's questionable authority to apply for a search warrant, absent the required approvals, and the issuance of the same, approach that type of abuse or arrogation of power which squarely places this case within the ambit of the...