Sigety v. Hynes

• Citation: 372 N.Y.S.2d 771,83 Misc.2d 648
• Parties: Application of Charles E. SIGETY d/b/a Florence Nightingale Nursing Home, Petitioner, v. Charles J. HYNES, Deputy Attorney General of the State of New York (SpecialProsecutor), Respondent. For an Order Pursuant to Articles 5, 23 and 78 of the Civil Practice Law andRules.
• Decision Date: 19 May 1975
• Court: New York Supreme Court

Page 771

372 N.Y.S.2d 771

83 Misc.2d 648

Application of Charles E. SIGETY d/b/a Florence Nightingale

Nursing Home, Petitioner, v. Charles J. HYNES, Deputy Attorney General of the State of

New York (SpecialProsecutor), Respondent.

For an Order Pursuant to Articles 5, 23 and 78 of the Civil

Practice Law andRules.

Supreme Court, Special Term, New York County, Part I.

May 19, 1975.

Rogers & Wells, New York City (Howard G. Kristol, Richard J. Schulman, Joan M. Markey, New York City, of counsel), for petitioner.

Charles J. Hynes, Deputy Atty. Gen. (Arthur Friedman, Hillel Hoffman, New York City, of counsel), for respondent.

SIDNEY A. FINE, Justice:

Petitioner, Charles E. Sigety, d/b/a Florence Nightingale Nursing Home, seeks a judgment (1) restraining the respondent from proceeding in excess of his lawful jurisdiction and (2) quashing a subpoena ad testificandum and duces tecum issued by the respondent, Charles J. Hynes, Deputy Attorney General of the State of New York, (Special Prosecutor), on or about April 7, 1975. As noted on the face of the subpoena, petitioner's testimony and records are sought 'in an inquiry into the management, control, operation and funding of nursing homes, care centers, health facilities and related entities located in the State of New York, and the principals, agents, suppliers and other persons involved therewith being conducted by the Deputy Attorney General (respondent) pursuant to Section 63(8) of the Executive Law of the State of New York, and the Executive Order of Governor Hugh Carey dated 7, February 1975'. Parenthetically, Hollis S. Ingraham, Commissioner of Health of the State of New York and Abe Lavine, Commissioner of Social Services of the State of New York by respective correspondence dated December 19, 1974, requested Louis J. Lefkowitz, New York State Attorney General, pursuant to Section 63(3) of the Executive Law, to investigate and prosecute the alleged commission of any indictable offenses relating to their departments by nursing homes or related facilities. The respondent is serving as Deputy Attorney General by virtue of his appointment to that position by the Attorney General. See Attorney General's letters of Jan. 10, 1975 and Feb. 13, 1975 (Executive Law, Section 62 and Section 63(8)).

Admittedly on January 13, 1975, Hon. George Roberts, Acting Justice of the Supreme Court, County of New York, empanelled a Grand Jury for Special Investigations into Criminal activities in New York County. This Grand Jury, empanelled under the authority of an Appellate Division order dated December 19, 1974, was created specifically to conduct an investigation into the nursing home industry and related entities in New York County. Subpoenas have been issued in conjunction with that Grand Jury investigation and the enforcement of such a subpoena through contempt proceedings initiated by the Special Prosecutor, has recently been ordered in a well reasoned opinion of Mr. Justice George Roberts (In Re Hynes (Moskowitz) NYLJ, May 9, 1975, p. 17, Col. 8).

The April 7, 1975 subpoena requiring the petitioner's testimony also, by annexed schedule, itemizes 51 separate categories of documents to be produced by the petitioner for each of the years 1968 through 1974. While petitioner claims such a production of what may amount to more than 50,000 documents, is unduly burdensome and oppressive, his principal attack upon the subpoena is that the respondent's investigation, purportedly undertaken, pursuant to Executive Law, Section 63(8), is nothing more than a veiled prosecution designed to circumvent rights to which petitioner would be entitled in conjunction with subpoenaed testimony before the Grand Jury. Thus while Section 190.40 of the Criminal Procedure Law confers immunity on persons compelled by subpoena to give testimony or produce documents before the Grand Jury, no such immunity is available to a party subpoenaed by the Special Prosecutor pursuant to Executive Law Section 63(8)--the latter being afforded only such limited rights as are specified in Section 73 of the Civil Rights Law.

Although respondent now argues that the primary authority for the issuance of the specified subpoena is to be found in Executive Law Section 63(3), read in conjunction with Executive Law Section 63(8), subpoena power is not reposited in Section 63(3) and that section cannot supply said authority should it be lacking in Section 63(8). Executive Law Section 63(8) provides in pertinent part:

'Whenever in his judgment the public interest requires it, the attorney-general may, with the approval of the governor, and when directed by the governor, shall, inquire into matters concerning the public peace, public safety and public justice. * * *. The attorney-general, his deputy, or other officer, designated by him, is empowered to subpoena witnesses, compel their attendance, examine them under oath before himself or a magistrate and require the production of any books or papers which he deems relevant or material to the inquiry.'

In Ward Baking Co. v. Western Union Telegraph Co., 205 App.Div. 723, 200 N.Y.S. 865, upon which the petitioner heavily relies, the court considered in detail the scope of the Attorney General's authority under Executive Law, Section 63(8) (then denominated as Section 62(8)). The court in Ward Baking Co., supra, restrained the Attorney General's investigation into a purported homicide, upon the grounds that the investigation was beyond the authority granted by the applicable section of the Executive Law. In a rather wide ranging opinion Mr. Justice Kellogg writing for a unanimous court, observed in part:

'The subdivision in question was added to section 62 by chapter 595 of the Laws of 1917. That act became a law in May, 1917, within one month of the time when the United States entered the World War. It is a matter of common knowledge that at this time the state and nation required protection against the destructive plans and acts of alien enemies resident here, as well as against the acts of its own disloyal citizens. There can be no reasonable doubt that the law thus enacted was fundamentally a war measure; that it was primarily designed to supply proof to the Governor of enemy activities within the borders of the state in order that by the exercise of his executive power he might suppress them. It is for this reason, it seems to us, that the investigations thereby sanctioned were limited to 'matters concerning the public peace, public safety and public justice.' The law was designed to avert rather than to punish subversive acts. It cannot be supposed that it was intended to invest the Attorney General with the power and duty to conduct an investigation (independent of the Grand Jury), wherever and whenever in any county of the state a crime had, in peace times, been committed by an individual.' (Ward Baking Co., supra, pp. 729, 730, 200 N.Y.S. p. 870).

Petitioner argues that the subpoena which it now seeks to quash was issued within the context of a prosecutorial investigati identical in material respects to the Attorney General's investigation restrained by the court in Ward Baking Co., supra. To support this argument petitioner notes that a 'civil investigation' of the privately operated nursing home industry was commenced on January 10, 1975, with the Governor's appointment of Morris B. Abram, as Special Commissioner, pursuant to Section 6 of the Executive Law (Moreland Act). In characterizing the simultaneous appointment on January 10, 1975, by the Attorney General, of respondent Hynes, as a Deputy Attorney General (Special Prosecutor), as the commencement of a 'criminal investigation', petitioner relies upon not only the background of that appointment, but also the specific language of the Attorney General's letter of Appointment dated January 10, 1975 and the Executive Order dated February 7, 1975. (9 NYCRR 3.4). Regarding the background of respondent's appointment, as noted above, Commissioners Ingraham and Lavine had, as early as December 19, 1974, requested the Attorney General to investigate and Prosecute indictable offences by nursing homes and related facilities. The Attorney General's January 10, 1975 letter of appointment similarly authorized 'investigation and prosecution' by the respondent. Although the Executive Order of February 7, 1975, specifically directs the respondent to conduct an investigation of the nursing home industry pursuant to Executive Law Section 63(8) and extends to the respondent all necessary powers thereunder, not only does the first recital paragraph of that Executive Order initially observe that:

'On ...