Leibowitz v. State

• Decision Date: 26 June 1978
• Parties: Alan Glenn LEIBOWITZ, an infant by his natural parent, Elaine Leibowitz, and Elaine Leibowitz, Claimants, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 676

406 N.Y.S.2d 676

95 Misc.2d 183

Alan Glenn LEIBOWITZ, an infant by his natural parent, Elaine Leibowitz, and Elaine Leibowitz, Claimants, v. The STATE of New York, Defendant.

Court of Claims of New York.

June 26, 1978.

Murray B. Schneps, New York City, for claimants.

Louis J. Lefkowitz, Atty. Gen. by Seth D. Corwin, Asst. Atty. Gen., for the State.

OPINION

GERARD M. WEISBERG, Judge.

This is a motion to quash a subpoena issued by claimants' attorney. The subpoena calls for the appearance of 11 employees of the State of New York (State) to testify at the trial of the instant claim. The claim consists of a cause of action for negligence in failing to properly care for the infant, Alan Glenn Leibowitz, while he was a resident of Brooklyn Developmental Center (Institution), and a derivative cause of action asserted by his mother, Elaine Leibowitz. The Institution is a facility of the State's Department of Mental Hygiene.

The subpoena is directed to the Institution, and was served upon its Deputy Director. All of the 11 persons named therein are presently employed at the Institution, and no issue has been raised as to their necessity as witnesses at the trial.

The State's first contention is that each person named in the instant subpoena was required to be served individually. The question presented is whether the State may be required to produce a number of its employees to testify at trial by virtue of a subpoena served upon it as the party defendant. Claimants principally rely upon the recent case of Matter of Standard Fruit & S.S. Co. v. Waterfront Comm. of N. Y. Harbor, 43 N.Y.2d 11, 400 N.Y.S.2d 732, 371 N.E.2d 453. In that case the Waterfront Commission served a subpoena upon Standard Fruit and Steamship Company requiring it to produce two of its employees for testimony in connection with an investigation of illegal activities. Neither of these employees was within the jurisdiction of the Commission and the corporation refused to produce them. The Court stated at page 15, 400 N.Y.S.2d at page 734, 371 N.E.2d at page 455:

"We hold that a corporation doing business in New York may be subpoenaed to testify as a witness about a corporate transaction through its officers and employees who have knowledge of the transaction. (L.1953, ch. 882, § 1, art. IV, subd. 8; § 1, art. XI, subd. 5; Southbridge Finishing Co. v. Golding, 2 A.D.2d 430, 156 N.Y.S.2d 542.) It is no excuse to say that the officers and employees who participated in the corporate transaction involved are not within the jurisdiction or that they refuse to appear or testify in New York. So long as the person who participated in the questioned corporate activity is an officer or employee of the corporation, or is under its control or direction, it is the corporation's responsibility to produce that person pursuant to a subpoena served upon the corporation."

The State has sought to distinguish the Standard Fruit case on the theory that the manner in which an administrative body, such as the Waterfront Commission, exercises subpoena power is different from that which a private litigant may exercise. The State requests a construction of Standard Fruit limiting it to its particular facts and cites Jones v. State of New York, 62 A.D.2d 44, 403 N.Y.S.2d 935, as controlling. In Jones the issue was whether a subpoena duces tecum, ¹ requiring the presence at trial of approximately 600 State Police Officers, should be quashed. The case involved several damage claims arising out of the retaking of the Attica Correctional Facility by State Police on September 13, 1971. A single subpoena had been served upon the Superintendent of State Police pursuant to a stipulation that this would constitute sufficient service upon all of the officers. The Court held that in view of representations by claimants' counsel that the number of witnesses who would actually be needed to testify could be substantially reduced, the subpoena for all 600 officers should be quashed. The Court stated at page 50, 403 N.Y.S.2d at page 939:

"Claimants may subsequently serve subpoenas upon such witnesses as are necessary for the trial of these actions, in accordance with provisions of the CPLR, including those concerning payment of witness and mileage fees (CPLR 2303, 8001)."

The opinion of the Fourth Department in Jones makes no mention of Standard Fruit, and we perceive the issues involved in those cases to have been somewhat different. In particular, the main point decided in Standard Fruit concerning the propriety of the method of service employed, was the subject of a stipulation in Jones. A conflict does exist between the two cases, however, since the Appellate Division in Jones quashed the subpoena which had been the subject of the stipulation and then directed that service be made upon each individual witness, at least initially. The Standard Fruit decision obviates this procedure entirely, placing upon the corporation the responsibility for producing its officers and employees.

The Court of Appeals decision in the Standard Fruit case is the higher authority and must be followed unless it is distinguishable from the case at bar. We believe that it is not. The CPLR draws no distinction between subpoenas issued by attorneys and commissions, stating merely that they both have authority to issue such process without court order (CPLR 2302). If anything, the right of an attorney to issue compulsory process is less subject to limitation than that of an administrative agency or commission. The use of such process by a commission for example, requires a demonstration that the inquiry sought is reasonably related to the purpose for which the commission was created. (Matter of Erb Strapping Co., Inc. v. Waterfront Comm. of N. Y. Harbor, 31 A.D.2d 101, 103, 295 N.Y.S.2d 523.) An attorney, on the other hand, may issue the process as of right (CPLR 2302).

It is similarly impossible to distinguish Standard Fruit from the present case on the theory that the State should be treated differently from a private corporation. Such a distinction would violate the spirit of section 8 of the Court of Claims Act, which provides in relevant part as follows:

"The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of ...