Hynes v. Moskowitz

• Decision Date: 08 December 1977
• Citation: 92 Misc.2d 495,401 N.Y.S.2d 398
• Parties: In the Matter of Charles J. HYNES v. Lawrence MOSKOWITZ and Mountain View Home for Adults.
• Court: New York Supreme Court

Page 398

401 N.Y.S.2d 398

92 Misc.2d 495

In the Matter of Charles J. HYNES v. Lawrence MOSKOWITZ and Mountain View Home for Adults.

Supreme Court, Rockland County.

Dec. 8, 1977.

Asst. Atty. Gen. Allen Mincho, Pearl River, for petitioner hynes.

Barry Ivan Slotnick by Jay L. T. Breakstone, New York City, of counsel, for respondent Moskowitz.

DECISION AND ORDER ON MOTION FOR COMPLIANCE

DUNCAN S. McNAB, Judge.

Petitioner herein, the Special State Prosecutor for Nursing Homes, has moved pursuant to CPLR § 2308(b) for an order mandating and directing compliance with a certain subpoena duces tecum issued upon the respondent Home for Adults on October 7, 1977, which subpoena calls for production of a wide variety of respondent's books and records; and that upon production, the named respondents surrender possession of said records to the Office of the Special Prosecutor for purposes of inspection, examination or audit. While respondents have not chosen to cross-move to quash the instant subpoena, they are by way of an affirmation in opposition, opposing the motion of the Special Prosecutor on grounds that the turnover and surrender of records to the Special Prosecutor for examination and audit as permitted via recent amendments to CPLR § 2305 and Executive Law § 63(8), eff. July 19, 1977 (see 1977 Session Laws, Chapter 451) would be unconstitutional as violative of respondent's Fourth and Fifth Amendment rights.

At the threshold, the Court would note that the Court of Appeals, in the seminal case of Friedman v. Hi-Li Manor Home for Adults, et al., 42 N.Y.2d 408, 397 N.Y.S.2d 967, 366 N.E.2d 1322, decided July 7, 1977, has approved the procedural posture adopted by respondents herein of awaiting the institution of proceedings to compel compliance and then for the first time raising objection. Thus, there would seem to be no infirmity in, nor does the Special Prosecutor raise objection to, the present procedural posture of the instant case; the Court would thereby go directly to the merits of defendant's substantive claims.

THE FIFTH AMENDMENT ISSUE

Initially, it is undisputed that the subpoena in question herein was issued pursuant to the authority granted the Deputy Attorney General (i. e., the Office of the Special Prosecutor) by Executive Order No. 36, dated August 2, 1976 and Executive Law § 63(8). In Friedman v. Hi-Li Manor Home for Adults, supra, the Court of Appeals held that "the Deputy Attorney General had authority by the issuance of an office subpoena duces tecum under subdivision 8 of section 63 of the Executive Law to compel the production of books and records of private proprietary homes for adults." In so holding, the Court of Appeals relied heavily on its previous holding in Matter of Sigety v. Hynes, 38 N.Y.2d 260, 379 N.Y.S.2d 724, 342 N.E.2d 518 (1975) wherein the subpoena power of the Special Prosecutor under Executive Law § 63(8) was upheld in an ongoing investigation of the nursing home industry. Noting the "close similarity" of adult homes to nursing homes, including the infusion of public moneys into both types of institutions and the fact that both are subject to state regulation and supervision, the Friedman Court affirmed lower court orders denying motions to quash the office subpoenas served therein. Of more immediate import herein, however, the Friedman Court went beyond the issue of authority for the issuance of the subpoena to specifically reject the further contention that enforcement of the subpoenas would violate constitutional protections against compulsory self-incrimination. J. Jones, speaking for the majority in Friedman, supra (J. Cooke concurring in a separate opinion in which Jasen and Gabrielli, JJ., concur), clearly stated that "the proposition that a P.P.H.A. is such a 'private enclave' (wherein the privilege could be raised, see Bellis v. U. S. 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1973)) is negated beyond peradventure by the statutory command to the Board of Social Welfare to 'visit and inspect, from time to time, and maintain a general supervision' of such homes (Executive Law § 750, subd. 1 (a)); the grant of power to representatives of the board of 'full access to the . . . books and papers relating to such institution' (id. subd. 3) . . . . and the required compliance in operation of such a home with the rules of the board (Executive Law § 758, subd. 3(e)) cf. Davis v. U. S., 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946))." Contrary to respondent's assertion, then, it would seem crystal clear that the Friedman Court placed adult homes squarely under the "required records" exception to the Fifth Amendment initially enunciated with respect to nursing homes in Sigety, supra (emphasis added) and see Shapiro v. U. S., 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1947); accordingly, respondent herein has no Fifth Amendment objection to raise upon production of the books and records being sought. (Compare Andreson v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) wherein the U. S. Supreme Court noted that the "Fifth Amendment may protect an individual from complying with a subpoena for the production of his personal records in his possession (but not from a seizure of the same materials by law enforcement officers pursuant to a search warrant) because the very act of production may constitute a compulsory authentication of incriminating information" in the context of a search of an attorney's law office pursuant to state warrant, as opposed to the subpoena served in the instant case upon a facility subject to extensive state regulation.)

The Court turns then to the separate issue of whether surrender of respondent's books and records pursuant to the above-noted recently enacted amendments to Executive Law § 63(8) and CPLR § 2305 would be unconstitutional as tantamount to an unreasonable search and search in violation of the Fourth and Fourteenth Amendments.

By way of preface, it is significant to note that both of these amendments were enacted less than two weeks after the Court of Appeals ruled in Matter of Windsor Park Home v. Hynes, 42 N.Y.2d 243, 397 N.Y.S.2d 723, 366 N.E.2d 813, and Heisler v. Hynes, 42 N.Y.2d 250, 397 N.Y.S.2d 727, 366 N.E.2d 817, both decided July 7, 1977, that while the Special Prosecutor could require production of a party's records either at his office or before the grand jury, such a right to production did not carry with it an accompanying right to retain possession of the records for independent examination via the issuance of an office subpoena duces tecum or grand jury subpoena duces tecum, respectively (absent proper application for an order of impoundment).

As amended, eff. July 19, 1977, CPLR § 2305 reads as follows:

"Attendance required pursuant to subpoena; possession of books, records, documents or papers.

(c) Inspection, examination and audit of records. Whenever by statute any department or agency of government, or officer thereof, is authorized to issue a subpoena requiring the producti of books, records, documents or papers, the issuing party shall have the right to the possession of such material for a period of time, and on terms and conditions, as may reasonably be required for the inspection, examination or audit of the material. The reasonableness of such possession, time, terms and conditions shall be determined with consideration for, among other things, (i) the good cause shown by the issuing party, (ii) the rights and needs of the person subpoenaed, and (iii) the feasibility and appropriateness of making copies of the material. The cost of reproduction and transportation incident thereto shall be borne by the person or party issuing the subpoena unless the court determines otherwise in the interest of justice."

Also effective July 19, 1977, Executive Law § 63(8) as amended, and in pertinent part, reads as follows:

"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 (the production of) that any books, records, documents or papers (which he deems) relevant or material to the inquiry be turned over to him for inspection, examination or audit, pursuant to the civil practice law and rules. If a person subpoenaed to attend upon such inquiry fails to obey the command of a subpoena without reasonable cause, or if a person in attendance upon such inquiry shall, without reasonable cause, refuse to be sworn or to be examined or to answer a question or to produce a book or paper, when ordered so to do by the officer conducting such inquiry, he shall be guilty of a misdemeanor." ¹

Significantly, the Court of Appeals in Heisler, supra, left open the very question raised herein in commenting: "if our legislature had intended . . . a subpoena duces tecum to compel a witness to surrender possession of books and records for audit and examination, if that be constitutionally valid, it is to be assumed that it would have done so expressly." (emphasis added)

Proceeding from that background, and now confronted by such an express legislative enactment, it is well-settled that "there is a strong presumption that a statute duly enacted by the Legislature is constitutional, and that in order to declare a law unconstitutional, the invalidity of the law must be demonstrated by the person attacking it beyond a reasonable doubt." People v. Berck, 32 N.Y.2d 567, 347 N.Y.S.2d 33, 300 N.E.2d 411 (1973); citing People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 487, 253 N.E.2d 202, 205 (1969) and Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 878, 209 N.E.2d 539, 541 (1965), wherein the Court of Appeals further held that Legislative enactments should be struck down "only as a last unavoidable result." Moreover, it has been held that "a lower court, as distinguished from a court having appellate jurisdiction, should not declare a statute in...