Sigety v. Hynes

Citation38 N.Y.2d 260,342 N.E.2d 518,379 N.Y.S.2d 724
Parties, 342 N.E.2d 518 In the Matter of Charles E. SIGETY, doing business as Florence Nightingale Nursing Home, Respondent, v. Charles J. HYNES, as Deputy Attorney-General, Appellant. In the Matter of EAST RIVER NURSING HOME, Respondent, v. Charles J. HYNES, as Deputy Attorney-General, Appellant. In the Matter of KENT NURSING HOME, Appellant, v. OFFICE OF the SPECIAL STATE PROSECUTOR FOR HEALTH AND SOCIAL SERVICES, Respondent.
Decision Date22 December 1975
CourtNew York Court of Appeals

Charles J. Hynes, Deputy Atty. Gen. (T. James Bryan and Hillel Hoffman, New York City, of counsel), for appellant in the first and second above-entitled proceedings and for respondent in the third above-entitled proceeding.

Howard G. Kristol, Jules Ritholz and Robert S. Fink, New York City, for respondents in the first and second above-entitled proceedings.

David C. Gilberg and Robert A. Gilberg, Mount Vernon, for appellant in the third above-entitled proceeding.

COOKE, Judge.

The three cases under review raise the fundamental question of whether the Deputy Attorney-General, for his part in the ongoing investigation of the nursing home industry, has subpoena power as provided in subdivision 8 of section 63 of the Executive Law. *

Deputy Attorney-General Hynes appeals from an order of the Appellate Division, First Department, which unanimously affirmed judgments of the Supreme Court, New York County, in Matter of Sigety v. Hynes, 49 A.D.2d 700, 373 N.Y.S.2d 848, and Matter of East Riv. Nursing Home v. Hynes, 83 Misc.2d 648, 372 N.Y.S.2d 771. Each such judgment restrained Hynes from proceeding in excess of his lawful jurisidction and quashed a subpoena duces tecum issued by him. Additionally, Kent Nursing Home appeals from an order of the Appellate Division, Second Department, which reversed an order of the Supreme Court, Westchester County, that had granted Kent Nursing Home's application to quash a similar subpoena in Matter of Kent Nursing Home v. Office of Special State Prosecutor for Health & Social Servs., 49 A.D.2d 616, 370 N.Y.S.2d 669. Because of the identity of central issue, these cases were argued and are now considered together.

On January 10, 1975, in response to growing concern as to the quality of care provided by private nursing homes receiving public financial assistance, the Governor, in Executive Order No. 2 (9 NYCRR 3.2) and pursuant to section 6 of the Executive Law, appointed a commissioner to head an official inquiry, looking into, among other things, the ownership, financing and control of nursing homes and residential facilities to the end of insuring 'that nursing homes and homes which shelter the aged and disabled provide the highest quality of care with the greatest degree of economy.' For, as the Governor stated in the preliminary paragraph of his Executive Order (9 NYCRR 3.2): 'When public funds are channeled through private hands to finance health and residential services, government must insure that those funds are used honestly and efficiently in the promotion of the public welfare. The compassionate purpose of programs of residential and health care must not be subverted by the improper diversion of public funds for private benefit, nor through the inability of government to control the use of such funds under present regulatory structures.'

The commissioner, thereby appointed, was directed 'to study, examine, investigate, review and make recommendations with respect to the management and affairs of any department, board, bureau, or commission of the State exercising any direction, supervision, visitation, inspection, funding or control of any nongovernmental nursing home, residential facility or home'. To assist him in his investigation he was granted subpoena power and '(e)very State department, division, board, bureau, commission, council and agency' was instructed to 'provide to the Commissioner every assistance, facility and cooperation'.

In connection with the above-described investigation of the nursing home industry, and with acknowledgment of the January 10, 1975 appointment by the Attorney-General of Charles J. Hynes as Deputy Attorney-General to act as prosecutor to inquire into possible criminal violations in the nursing home industry, the Governor on February 7, 1975 issued Executive Order No. 4 (9 NYCRR 3.4). Finding it to be in the public interest to inquire into 'matters concerning the public peace, public safety and public justice with respect to possible criminal violations committed in connection with or in any way related to the management, control, operation of funding' of any nursing home or health related facility, the Governor directed that there be such inquiry and conferred upon the Attorney-General the appropriate powers and duties as specified in subdivision 8 of section 63 of the Executive Law. Prior to these directives, the Commissioners of Health and Social Services each had written to the Attorney-General requesting investigation pursuant to subdivision 3 of section 63 of the Executive Law of possible violation of the Public Health and Social Services Laws and it was subsequent to these requests that the Deputy Attorney-General had been appointed.

While a request made upon the Attorney-General in accordance with either subdivision 3 or 8 would serve to initiate investigation, the powers and duties of the Attorney-General are detailed with more particularity in the latter. Subdivision 8 begins as follows: '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.' Said subdivision continues by providing, Inter alia, that '(t)he 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' and by requiring that the Governor be provided with a detailed weekly report of the progress of the inquiry.

The subpoenas sought to be quashed were issued pursuant to subdivision 8 of section 63 of the Executive Law. The petitioner in each instance asserts that said subdivision does not serve as authority for issuance of such process. A similar challenge had been made to subpoenas issued pursuant to this statute in Matter of Di Brizzi (Proskauer), 303 N.Y. 206, 101 N.E.2d 464. There, an investigation had been ordered by the Governor to be conducted by the Attorney-General and 'officers of the Department of Law', denominated collectively as the New York State Crime Commission. Subpoenas, issued by the commission in connection with the executive directive (p. 211, 101 N.E.2d p. 466) "(t)o investigate generally the relationship between organized crime and any unit of Government anywhere in the state", were unsuccessfully sought to be quashed. As this court stated in Di Brizzi, p. 210, 101 N.E.2d p. 467 the words 'inquire into matters concerning the public peace, public safety and public justice', employed in subdivision 8, are to be interpreted in their usual and ordinary sense and are not to be limited by a narrow and technical meaning. We there asserted that although it was a war emergency that brought about legislative recognition of the need for such a provision, the Legislature, in enacting said statute employed general terms and did not, either expressly or by implication, limit its operation to a time of war. 'A general law may, and frequently does, originate in some particular case or class of cases which is in the mind of the legislature at the time; but so long as it is expressed in general language, the courts cannot, in the absence of express restrictions, limit its application to those cases, but must apply it to all cases that come within its terms and its general purpose and policy' (People ex rel. McClelland v. Roberts, 148 N.Y. 360, 368, 42 N.E. 1082, 1084, cited as authority in Matter of Di Brizzi (Proskauer),supra, 303 N.Y. at p. 214, 101 N.E.2d 466).

Widespread corruption in the nursing home industry, care of the elderly and infirm and compensation for that care from the public treasury are 'matters concerning the public peace, public safety and public justice' just as organized crime and its relationship to...

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