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NOTEY v. HYNES
August 27, 1976
ANTON NOTEY, RICHARD NOTEY and THOMAS NOTEY, as Partners in the SOUTH SHORE NURSING HOME and CENTRAL ISLAND NURSING HOME, Plaintiffs-Petitioners,
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
The opinion of the court was delivered by: PLATT
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:
"1. Every witness in a grand jury proceeding must give any evidence legally requested of him regardless of any protest or belief on his part that it may tend to incriminate him.
"2. A witness who gives evidence in a grand jury proceeding receives immunity unless:
(c) The evidence given by the witness consists only of books, papers, records or other physical evidence of an enterprise, as defined in subdivision one of section 175.00 of the penal law, the production of which is required by a subpoena duces tecum, and the witness does not possess a privilege against self-incrimination with respect to the production of such evidence. * * *"
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:
"5. Prior to the issuance of the subject Grand Jury subpoenas, two subpoenas were issued by the defendant pursuant to Section 63(8) of the New York Executive Law. These subpoenas were returnable before the defendant at his offices at the State Office Building Veteran's Highway, Hauppauge, New York, on January 12th, 1976. (Subpoenas attached hereto as petitioners' Exhibits "B" and "C").
"6. The return of the non-judicial subpoenas issued pursuant to Section 63(8) was adjourned by consent of a Special Deputy Attorney General Arthur Friedman, an authorized agent of the defendant, pending the outcome of a motion to quash and vacate these subpoenas, prosecuted before the Hon. F. X. McInerny, Justice of the Supreme Court of the State of New York for the Tenth Judicial District.
"7. On March 3rd, 1976, the above-mentioned motion to quash was granted in part and denied in part, to wit; '. . . granted as to the production of all records involving doctor-patient and attorney-client relationships. In all other respects, the motions to quash these subpoenas are denied.'
"8. On April 6th, 1976, the plaintiffs-petitioners brought an action pursuant to Title 42, Section 1983, United States Code, seeking to enjoin the defendant from enforcing these subpoenas and thereby depriving them, under color of state law, of their rights, privileges and immunities secured to them by the Constitution and laws of the United States.
"9. On April 8th, 1976, a bi partite hearing was held before the Hon. Henry J. Bramwell, United States District Judge for the Eastern District of New York, to determine whether a temporary restraining order, sought by the petitioners, should issue. Subsequent to that hearing, a temporary restraining order was imposed restraining the defendant from enforcing the two subpoenas duces tecum until April 15th, 1976 pending a hearing for a preliminary injunction to be held before the Hon. Thomas C. Platt, United States District Judge for the Eastern District of New York.
"10. On April 15th, 1976, the plaintiffs-petitioners moved before the Hon. Thomas C. Platt to preclude the defendant from enforcing the subject subpoenas duces tecum, issued pursuant to Section 63(8) of the New York Executive Law. The gravamEn of petitioners' action, docketed as No. 76 Civ. 634, was that these subpoenas sought the production of books and records which were protected by the Fifth and Fourteenth Amendments of the United States Constitution. Subsequent to oral argument, in which all parties participated, decision was reserved and the temporary restraining order, formerly imposed by the Hon. Henry J. Bramwell, was ordered to be continued. Pending the decision on the preliminary injunction, counsel for the plaintiffs-petitioners was served, on May 11th, 1976, with a letter by Special Deputy Attorney General Arthur Friedman, authorized agent of the defendant. (Letter attached hereto as petitioners' Exhibit "D"). Therein, the petitioners were informed that the office of the Special Prosecutor was:
'Hereby withdrawing, and abandoning all efforts at enforcement of, the previously issued subpoenas duces tecum served upon the Central Island and South Shore Nursing Homes; and
b. Issuing in their stead, two grand jury subpoenas duces tecum which I am enclosing, again pursuant to my understanding with Ron Fischetti.' (Attached hereto as Exhibits "F", "G")
"11. Accordingly, on May 17th, 1976, the matter was brought on before the Hon. Thomas C. Platt. At this time, Special Deputy Attorney General Arthur Friedman notified the Court that he had withdrawn the subpoenas duces tecum which were the subject of the litigation at bar. Mr. Friedman further represented to both Court and counsel that he would never again issue a subpoena ...
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