Doe v. Kuriansky

• Decision Date: 16 August 1993
• Citation: 158 Misc.2d 797,601 N.Y.S.2d 1004
• Parties: In the Matter of the Application of John DOE, Petitioner, v. Edward J. KURIANSKY, Deputy Attorney General for Medicaid Fraud Control, Respondent.
• Court: New York Supreme Court

Page 1004

601 N.Y.S.2d 1004

158 Misc.2d 797

In the Matter of the Application of John DOE, Petitioner, v. Edward J. KURIANSKY, Deputy Attorney General for Medicaid Fraud Control, Respondent.

Supreme Court, Kings County Criminal Term, Part 46.

Aug. 16, 1993.

Goldman & Hafetz, New York City, Sherrin & Glasel, Albany, for petitioner.

Edward J. Kuriansky, Deputy Atty. Gen., New York City (Beatrice A. Close, of Counsel), for respondent.

MICHAEL J. GARSON, Justice.

Petitioner ¹ moves to quash a grand jury subpoena duces tecum served upon him as operator of "John Doe Home for Adults" on the following grounds: (a) the respondent Deputy Attorney General does not have "jurisdiction" to investigate adult homes; (b) the letters authorizing the Attorney General to investigate the private proprietary homes for adults (hereinafter referred to as "PPHA") industry are stale; and (c) respondent's office has become impermissibly independent from the Attorney General's office.

The court has considered petitioner's moving papers and exhibits and respondent's submissions in opposition in deciding this motion.

Facts

On December 19, 1974, in separate letters, the Commissioners of Health and the Department of Social Services made written requests to the Attorney General to investigate and if necessary prosecute offenses involving the nursing home industry under section 63(3) of the Executive Law.

In response to said requests, Attorney General Lefkowitz appointed Charles J. Hynes on January 10, 1975 with respect to nursing home matters as "Deputy Attorney General (Special Prosecutor) with authority to perform as my Deputy any and all functions and to exercise any and all powers conferred upon the Attorney General."

On February 7, 1975 Governor Hugh L. Carey issued Executive Order 4 recommending to the Attorney General that Hynes be appointed to exercise powers provided for by Executive Law § 63(8) to investigate the nursing home industry (Matter of DiBrizzi, 303 N.Y. 206, 101 N.E.2d 464). Hynes was then appointed by the Attorney General to undertake the duties requested by the Governor. The letter appointing Hynes indicated that the appointment was terminable at will by the Attorney General.

The New York State Board of Social Welfare (hereinafter referred to as "the Board") made a written request on April 20, 1976, as per a resolution of the Board of the same date, asking the attorney general to investigate "any indictable offense or offenses ... by private proprietary homes for adults ... and principals, agents, suppliers and other persons connected or involved therewith ..." The request was made pursuant to section 63(3) of the Executive Law.

In a letter dated June 28, 1976 the Attorney General once again assigned Hynes as his deputy to undertake such investigation and any prosecutions arising therefrom. According to the Attorney General's letter, the assignment was to "supplement the authority you received upon your appointment as my deputy on January 10, 1975 to perform all the functions and to exercise all the powers conferred upon the Attorney General."

On August 2, 1976, Governor Carey issued Executive Order No. 36 recommending to the Attorney General that Hynes be appointed to conduct an inquiry into the PPHA industry pursuant to Executive Law § 63(8). The Order directed Hynes to inquire into "all matters concerning the administration, management, control, operation, supervision, funding and quality of private proprietary homes for adults, or any principal, operator, agent, supplier or other person connected therewith."

The Governor's Executive Law § 63(8) request was confirmed by an August 26, 1976 letter of the Attorney General and read, in pertinent part, as follows:

"You are hereby appointed as a Deputy Attorney General with authority to perform as my Deputy any and all functions and to exercise any and all powers conferred upon the Attorney General by Executive Order No. 36 ... in relation to private proprietary homes for adults ...

This appointment is terminable by the Attorney General at will " (emphasis added).

Hynes' duties were further enlarged in 1977 to include hospitals subject to the Public Health and Social Services Laws and again in 1978 to cover Medicaid matters.

In 1977, the State Legislature transferred the powers and duties of the Board of Social Welfare to the State's Department of Social Services (see, McKinney's Session Laws of N.Y., L.1977, ch. 669). The transferring legislation expressly provided for the perpetual continuation of the prior activities and actions of the Board. It provided in effect that all prior determinations and actions of the Board should continue in full force and effect under the auspices of the Department of Social Services.

Respondent was appointed by the Attorney General to succeed Charles Hynes on December 17, 1980 as Deputy Attorney General with "authority to perform any and all powers conferred upon me as Attorney General." The letter from Attorney General Abrams went on to provide:

"You are hereby authorized to exercise any and all rights, powers, responsibilities, duties and assignments previously imposed upon or delegated to former Deputy Attorney General Charles Hynes by me or my predecessor, and authorized to continue, in your own name, any proceedings, actions or other matters commenced by Mr. Hynes ...

Your tenure is terminable by the Attorney General at will (emphasis added)."

On January 14, 1993, two months prior to the issuance of the subpoena at issue herein, respondent was asked to investigate "possible criminal activity that may have occurred at [petitioner's] adult home." The written request was signed by Department of Social Services (DSS) Deputy Counsel Bridget Eadon, and was written upon DSS letterhead. The letterhead included the printed names of the Commissioner of Social Services and DSS General Counsel.

Several excerpts from various executive budgets have been submitted by petitioner in support of his motion to quash. Recent budget pronouncements state that respondent's office "was established in 1975 ... by the Governor and the Attorney General to conduct a statewide investigation of and prosecute criminal activities in, nursing home and health industries," and that "[i]n all other respects the Unit acts as an independent agency" (Executive Budget of 1992-93, at 388).

Also submitted are executive budgets from fiscal years covering 1978-79 through 1984-85 which make reference to ongoing adult home investigations, and budgets subsequent to 1984-85 which make no such reference.

Respondent's Authority to Investigate PPHAs

Executive Law § 63, subdivision 3, reads, in pertinent part, as follows:

"The attorney-general shall:

* * * * * *

3. Upon request of the governor, comptroller, secretary of state ... or the head of any other department, authority, division or agency of the state, investigate the alleged commission of any indictable offense or offenses in violation of the law which the officer making the request is especially required to execute or in relation to any matters connected with such department, and to prosecute the person or persons believed to have committed the same and any crime or offense arising out of such investigation or prosecution or both, including but not limited to appearing before and presenting all such matters to a grand jury" (emphasis added).

Subdivision 8 of the Executive Law § 63 reads, as is relevant, as follows:

"8. Whenever in his judgment the public interest requires it, the attorney-general may, with the approval of the governor, and when directed by the governor, shall, inquire into matters concerning the public peace, public safety and public justice. For such purpose he may, in his discretion ... appoint and employ, and at pleasure remove, such deputies, officers and other persons as he deems necessary, determine their duties and, with the approval of the governor, fix their compensation ... The attorney-general, his deputy, or other officer, designated by him, is empowered to subpoena witnesses, compel their attendance, examine them under oath before himself or a magistrate and require that any books, records, documents or papers relevant or material to the inquiry be turned over to him for inspection, examination or audit, pursuant to the civil practice law and rules ..." (emphasis added).

The letter of April 20, 1976 from the Board of Social Welfare to the Attorney General empowered that office to undertake an investigation of the PPHA industry pursuant to Executive Law § 63(3). The Attorney General properly delegated the duties to Charles J. Hynes, who had already been assigned similar duties vis-a-vis the nursing home industry (Matter of Moe v. Kuriansky, 120 A.D.2d 594, 595, 502 N.Y.S.2d 221; see also, De Lucia v. Lefkowitz, 62 A.D.2d 674, 678, 406 N.Y.S.2d 150, aff'd sub nom. Hopkins v. Lefkowitz, 48 N.Y.2d 901, 424 N.Y.S.2d 897, 400 N.E.2d 1349; Executive Law § 62).

The subsequent resignation of Charles Hynes had no effect on the authority of the Attorney General to continue the probe of the PPHA industry. A request under Executive Law § 63(3) vests the Attorney General with the authority to act pursuant to such a request and not the Special Prosecutor, although he may properly delegate the duties to his deputies. Respondent's appointment to succeed Hynes clearly bestowed upon respondent all duties and powers lawfully possessed by Hynes through the Attorney General and his predecessor. The Attorney General, upon Hynes' resignation, simply delegated the Special Prosecutor's duties to respondent (Matter of Moe v. Kuriansky, 120 A.D.2d, at 595, 502 N.Y.S.2d 221, supra ).

In addition to his authority under 63(3), the Attorney General was also properly vested with the power to inquire into the PPHA industry via the Governor's Executive Order No. 36, pursuant to Executive Law § 63(8) (see, Friedman v. Hi-Li Manor Home for Adults, 42 N.Y.2d 408, 397 N.Y.S.2d 967, 366 N.E.2d...