Goldberg v. Axelrod

• Decision Date: 23 August 1984
• Citation: 479 N.Y.S.2d 887,104 A.D.2d 520
• Parties: In the Matter of Joseph GOLDBERG, Appellant, v. David AXELROD, as Commissioner of Health of the State of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 887

479 N.Y.S.2d 887

104 A.D.2d 520

In the Matter of Joseph GOLDBERG, Appellant, v. David AXELROD, as Commissioner of Health of the State of New York, Respondent.

Supreme Court, Appellate Division Third Department.

Aug. 23, 1984.

La Rossa, Axenfeld & Mitchell, New York City (Karen F. Silverman, New York City, of counsel), for appellant.

Robert Abrams, Atty. Gen. (Alan W. Rubenstein, Albany, of counsel), for respondent.

Before MAHONEY, P.J., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered November 23, 1983 in Albany County, which denied petitioner's motion pursuant to CPLR 2304 to quash certain subpoenas duces tecum.

Respondent was appointed receiver for Kings Harbor Care Center, a residential health care facility, in February of 1979. Petitioner had been employed by the facility as its comptroller and retained that position after the appointment. An extensive audit by respondent allegedly uncovered substantial evidence of financial misconduct on the part of petitioner. On August 19, 1983, respondent issued subpoenas duces tecum to two banks demanding production of, inter alia, all documents and information relating to specific accounts as well as any accounts in the name of Kings Harbor or petitioner. Petitioner moved pursuant to CPLR 2304 to quash the subpoenas. Special Term denied the motion, and this appeal by petitioner ensued.

Initially, we reject respondent's contention that petitioner lacks standing to challenge the subpoenas. The cases relied on by respondent do not deal with the issue of standing to challenge subpoenas generally, but standing to raise a constitutional challenge to a subpoena based on a violation of the Fourth and Fourteenth Amendments to the United States Constitution. These cases restricting standing are based on the principle that a claim of violation of Fourth Amendment rights may be brought only by the person whose rights were violated, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of the violation of another's Fourth Amendment rights (see Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697). In the instant case, petitioner does not base his challenge to the subpoenas duces tecum on an alleged violation of Fourth Amendment rights, but on statutory grounds. That being the case, standing must be determined by application of the "zone of interest" test set forth in Matter of Dairylea Coop. v. Walkley (38 N.Y.2d 6, 377 N.Y.S.2d 451, 339 N.E.2d 865). Petitioner "need only show that the administrative action will in fact have a harmful effect" on him and that the interest advanced is arguably within the zone of interest to be protected by the statute (id. at 9, 377 N.Y.S.2d 451, 339 N.E.2d 865). It is apparent that petitioner stands to be harmed by disclosure of financial matters which he does not want to disclose. As for the second aspect of the test, the category of persons entitled to judicial determination as to the validity of administrative action must be broadly defined, such that standing should be denied only where there is a clear legislative intent negating review (see Matter of Queens Farms v. Gerace, 96 A.D.2d 1120, 1121, 467 N.Y.S.2d 712, mod. on other grounds 60 N.Y.2d 65, 467 N.Y.S.2d 561, 454 N.E.2d 1304). Here, a party to an action would appear to be within the category of persons to be protected by statutory restrictions on the issuance of...