Notey v. Hynes
Decision Date | 27 August 1976 |
Docket Number | No. 76C981.,76C981. |
Citation | 418 F. Supp. 1320 |
Parties | Anton NOTEY et al., Plaintiffs-Petitioners, v. Charles J. HYNES, Individually and as Deputy Attorney General of the State of New York and Director of the Office of the Special State Prosecutor for Health and Social Services, Defendant-Respondent. |
Court | U.S. District Court — Eastern District of New York |
LaRossa, Shargel & Fischetti, New York City, for plaintiffs-petitioners.
Charles J. Hynes, Deputy Atty. Gen., Hauppauge, N. Y., for defendant-respondent.
This is an action for an injunction and a declaratory judgment restraining the enforcement of Section 190.40 of the New York Criminal Procedure Law and declaring said statute unconstitutional as violative of the Fifth and Fourteenth Amendments to the Constitution of the United States. Plaintiffs have moved for a preliminary injunction to restrain the defendants from enforcing a grand jury subpoena duces tecum addressed to Thomas Notey, one of the partners of the Central Island Nursing Home and the South Shore Nursing Home in which the above-named plaintiffs do business as partners, and in connection therewith request the convention of a three-judge court to hear and determine such motion.
Section 190.40 of the New York Criminal Procedure Law provides in pertinent part that:
It is not disputed that the nursing homes are "enterprises" as defined in New York Penal Law § 175.00.
The parties agree that the background facts are properly summarized in paragraphs 5 through 14 of the affidavit of the attorney for the plaintiffs submitted in support of their motion and accordingly such paragraphs are set forth in full herein:
In addition to the foregoing, plaintiffs' new complaint alleges that the grand jury subpoenas in question commanded the plaintiff, Thomas Notey, as operator and owner of the two nursing homes to produce various books and records listed on the subpoenas duces tecum; that the grand jury subpoenas duces tecum were issued without the advice or consent of the grand jury; that the subject books and records of the two partnerships are maintained as the private records of the individual partners and constitute the personal property of the plaintiffs; that the subject partnerships have been operated as personal and purely private businesses; that the records are held by the plaintiffs as their individual personal records and not in any representative capacity; that the compulsory production of such records would operate to deprive plaintiffs of the rights, privileges and immunity secured to them by the Fifth and Fourteenth Amendments of the United States Constitution; that the aforesaid nursing homes are operated as a three-man family partnership; that failure to comply with these subpoenas will subject the plaintiffs to prosecution for criminal contempt; that the enforcement of the subpoenas will result in the deprivation under color of State law of plaintiffs' rights, privileges and immunity secured by the Constitution and will be in violation of Title 42 U.S.C. § 1983; and that enforcement thereof and compliance therewith will cause irreparable and immediate harm, injury and damage to the plaintiffs.
It appears to the Court that there are three principles which preclude granting plaintiffs the relief they request. Collateral estoppel prevents plaintiffs from litigating here a critical part of their claim; the abstention doctrine prevents this Court from acting on their claim; and plaintiffs have not satisfied the requirement, especially severe where we are asked to interfere with the State's criminal process, that irreparable injury be imminent before an injunction is issued.
Defendant points out that originally his office issued two administrative subpoenas duces tecum to the Central Island and South Shore Nursing Homes, under the authority of § 63(8) of the Executive Law of the State of New York, that called for the production of the identical documents requested by the grand jury subpoenas duces tecum. Following the service of these original subpoenas, plaintiffs' nursing homes moved in the Supreme Court of the State of New York,...
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