Kent Nursing Home v. Office of Special State Prosecutor for Health and Social Services

• Decision Date: 21 July 1975
• Citation: 370 N.Y.S.2d 669,49 A.D.2d 616
• Parties: In the Matter of KENT NURSING HOME, Respondent, v. OFFICE OF the SPECIAL STATE PROSECUTOR FOR HEALTH AND SOCIAL SERVICES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 669

370 N.Y.S.2d 669

49 A.D.2d 616

In the Matter of KENT NURSING HOME, Respondent, v. OFFICE OF the SPECIAL STATE PROSECUTOR FOR HEALTH AND SOCIAL SERVICES, Appellant.

Supreme Court, Appellate Division, Second Department.

July 21, 1975.

Charles J. Hynes, New York City (Arthur Friedman, New York City, Michael Shapiro, Kew Gardens, and Michael J. Toolan, New York City, of counsel), for appellant.

Gilberg & Gilberg, Mount Vernon (David C. Gilberg, Mount Vernon, of counsel), for respondent.

Before RABIN, Acting P.J., and HOPKINS, MARTUSCELLO, LATHAM and COHALAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding to quash a certain subpoena dated April 28, 1975, which directs petitioner, by Anna Severino, to appear for examination before Charles J. Hynes, Deputy Attorney-General of the State of New York, and to produce at that examination the books and records referred to therein, the appeal is from an order of the Supreme Court, Westchester County, entered May 27, 1975, which granted the application.

Order reversed, on the law, with $20 costs and disbursements, and application denied; proceeding remanded to Special Term to fix the time and place of the examination to be held pursuant to the subpoena.

The books and records described in the subpoena are required to be kept by petitioner, Kent Nursing Home, in compliance with section 2803--b of the Public Health Law and 10 NYCRR 730.6. Therefore, petitioner cannot avoid production thereof on the theory that their contents tend to incriminate Anna Severino and her partner in their operation of the nursing home. By virtue of the above statutory provisions and regulations, petitioner, as a licensed nursing home, must keep those books and records available for public inspection by duly authorized public officials (cf. Shapiro v. United States, 335 U.S. 1, 5, 68 S.Ct. 1375, 92 L.Ed. 1787; also see, Matter of Lewis v. Hynes, Sup., 368 N.Y.S.2d 738 (1975)). Moreover, Severino, as one of the partners operating petitioner, cannot avoid the production of the books and records on the theory that the production thereof would personally incrimina her, since those books and records belong to the collective entity Kent Nursing Home (cf. Bellis v. United States, 417 U.S. 85, 88, 94 S.Ct. 2179, 40 L.Ed.2d 678; see, also, Matter of Lewis v. Hynes, Supra).

The appointment of appellant Hynes, as Deputy Attorney-General to conduct a criminal investigation as to unlawful practices in the operation of nursing homes in New...