Lipson, In re

• Court: United States State Supreme Court (New York)
• Writing for the Court: JOSEPH A. SUOZZI
• Citation: 45 Misc.2d 487,257 N.Y.S.2d 316
• 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.
• Decision Date: 27 July 1964

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257 N.Y.S.2d 316 45 Misc.2d 487 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. Supreme Court, Special Term, Nassau County, Part I. July 27, 1964.

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[45 Misc.2d 488] Patrick J. Mahoney, Garden City, for petitioners.

Jack B. Weinstein, County Atty. of Nassau County, Mineola, for respondents.

JOSEPH A. SUOZZI, Justice.

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.

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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 [45 Misc.2d 489] 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...