Lipson, In re
| Decision Date | 27 July 1964 |
| Parties | In the Matter of the Investigation into the Accounts, Methods and Activities of the Department of Public Works of Nassau County by the Commissioner of Accounts of Nassau County, Milton LIPSON. Application of Robert RUSHMORE et al., Petitioners, for an Order and Judgment, or either, v. Milton LIPSON, etc., et al., Respondents. |
| Court | New York Supreme Court |
Patrick J. Mahoney, Garden City, for petitioners.
Jack B. Weinstein, County Atty. of Nassau County, Mineola, for respondents.
This is a proceeding brought under Article 78 of the CPLR for an order restraining or prohibiting the respondent Milton Lipson, as Commissioner of Accounts of Nassau County from proceeding with an examination of the petitioners, and directing the respondent, Eugene Nickerson, as County Executive, to instruct Lipson to terminate his investigation. The respondent Lipson, by cross-motion, requests an order directing the petitioners Sartor, Ryan and Mattson, to answer specified questions and/or to produce enumerated records or be punished for contempt on their failure to comply.
The respondent Lipson, as Commissioner of Accounts of Nassau County, has been conducting an investigation of the accounts, methods and activities of the Nassau County Department of Public Works pursuant to Nassau County Government Law, § 206, Laws 1936, c 879. During the course of the inquiry, he caused subpoenas to be served on the individual petitioners who are employees of firms which conducted business with the County through its Public Works Department. The petitioners, on this application, advance the argument that the scope of the investigation is exceeding legitimate bounds of inquiry, and that its continuance over a protracted period only serves to harass the petitioners. The Court cannot consider the propriety of the question presented, for that issue may not be raised in this type of proceeding.
The petitioners are presumably seeking an order in the nature of prohibition or an order of injunction. The petitioners have mistaken the remedy available to them. The appropriate procedure to test the propriety of the subpoena or the relevancy and materiality of the documents to be produced thereunder is by motion to modify or quash the subpoena (Carlisle v. Bennett, 268 N.Y. 212, 197 N.E. 220; see also, LaBelle Creole Internationale, S.A., v. Attorney General, 10 N.Y.2d 192, 219 N.Y.S.2d 1, 176 N.E.2d 705). A proceeding under Article 78 in the nature of prohibition is an extraordinary remedy which will not lie to prevent the performance of acts which are administrative or legislative in nature (Matter of Rivkin v. Garbros, Inc., 183 Misc. 389, 48 N.Y.S.2d 25), and may not be employed where there is another adequate remedy (Matter of Zelter v. Nash, 285 App.Div. 1214, 140 N.Y.S.2d 652). Furthermore, even though an injunction may be granted in a proceeding under Article 78 (Matter of Policemen's Benevolent Ass'n of Westchester County, Inc. v. Board of Trustees, 21 A.D.2d 693, 250 N.Y.S.2d 523 (2d Dept.) an injunction will not lie where there is an adequate remedy at law by motion to quash, vacate or modify the subpoenas (Carlisle v. Bennett, supra; Matter of Zelter v. Nash, supra).
The respondents' cross-motion to compel compliance with the subpoenas, whose issuance has been initially sustained (Matter of Lipson v. George Malvese & Co., Inc., 39 Misc.2d 778, 241 N.Y.S.2d 929, aff'd 20 A.D.2d 666, 247 N.Y.S.2d 1008), places on the petitioners the burden of establishing that the scope of the investigation has exceeded the legitimate functions and powers of the Commissioner of Accounts (Nassau County Government Law, § 206). When the petitioners preliminarily contested the validity of the subpoenas, they encountered the burden of proving the subpoenas called for documents which were utterly irrelevant to any proper inquiry, or that their issuance constituted an obviously futile attempt to uncover anything legitimate (Matter of LaBelle Creole Internationale, S.A. v. Attorney General, supra; Matter of Edge Ho Holding Corporation [Higgins], 256 N.Y. 374, 382, 176 N.E. 537, 539). The reason for the rule is based on the theory that investigations should not be paralyzed in advance of hearings by the forecasting of the materiality of the evidence that may be adduced (Matter of LaBelle Creole Internationale v. Attorney General, supra, 10 N.Y.2d at 196, 197, 219 N.Y.S.2d at 4-5, 176 N.E.2d at 707-708).
In this case, the preliminary phase of the investigation has passed. Hearings have been conducted, testimony taken and records produced. The length to which the inquiry may be extended is, therefore, no longer tested by the standards applied in advance of hearings. Disclosure of the relevancy and materiality of the evidence sought to be elicited is now mandatory. Section 206 of the Nassau County Government Law does not confer upon the respondent Lipson the arbitrary and unbridled discretion as to the scope of his investigation (Carlisle v. Bennett, supra, 268 N.Y. at 217, 197 N.E. at 222), and he is not commissioned to embark upon any roving course for the purpose of generally prying into the affairs of private citizens (Dunham v. Ottinger, 243 N.Y. 423, 433, 154 N.E. 298, 300).
From the papers submitted it appears that there have been some disclosures which 'indicate a course of conduct of making'...
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