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BRENNICK v. HYNES

May 8, 1979

Charles BRENNICK, Plaintiff,
v.
Charles J. HYNES, Deputy Attorney General of the State of New York, John Meekins, Special Assistant Attorney General of the State of New York, and Jack J. Pivar, Special Assistant Attorney General of the State of New York, Defendants



The opinion of the court was delivered by: FOLEY

MEMORANDUM-DECISION and ORDER

This is a civil rights action brought pursuant to 42 U.S.C. §§ 1983, 1985(2), and 1986 with jurisdiction founded on 28 U.S.C. § 1343. By this action, plaintiff Charles Brennick seeks to enjoin defendants Charles J. Hynes, Deputy Attorney General of the State of New York appointed as Special Prosecutor to investigate and prosecute violations of the criminal law in the nursing home industry ("the Special Prosecutor"), John Meekins, Special Assistant Attorney General in charge of the Special Prosecutor's Albany Regional Office, and Jack J. Pivar, a Special Assistant Attorney General assigned to that office, and those under their control from conducting any further grand jury proceedings directed against the plaintiff and from seeking an indictment against the plaintiff on the basis of grand jury proceedings heretofore conducted.

Plaintiff alleges as a basis for this drastic relief that his right to be free from compulsory self-incrimination as guaranteed by the Fifth Amendment and applicable to the States through the Fourteenth Amendment has been violated by the defendants through impermissible use of his immunized testimony given pursuant to § 7(a)(10) of the Bankruptcy Act, as amended, 11 U.S.C. § 25(a) (10), and that his right to due process of law as guaranteed by the Fourteenth Amendment has been violated by defendants Hynes and Meekins as a result of prosecutorial misconduct.

 Now before the Court is plaintiff's motion for a preliminary injunction, Fed.R.Civ.P. 65(a), which seeks the same relief requested in the complaint, and defendants' motion to dismiss the complaint on the ground that it fails to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). Oral argument was heard on March 19, 1979. The following shall constitute the Court's findings of fact and conclusions of law as required by Rule 52(a), Fed.R.Civ.P.

 FACTS

 Beginning in early 1975, plaintiff became the subject of an investigation by the office of the Special Prosecutor. Complaint, P 8. Thereafter, in 1976, plaintiff initiated voluntary proceedings for an arrangement under Chapter XII of the Bankruptcy Act in the United States District Court for the District of Massachusetts involving plaintiff personally and various business entities in which he has a proprietary interest. Complaint, P 10; Affidavit of Charles A. Stillman, P 9, filed March 7, 1979. On July 13, 1977, an order, pursuant to Bankruptcy Rule 205(a), was entered requiring plaintiff to appear and be examined by counsel to the Trustee in the bankruptcy proceedings involving plaintiff personally. Affidavit of Charles A. Stillman, P 14, Exhibit A, filed March 7, 1979. This examination was held on July 19 and 20, 1977. Complaint, P 12.

 In October of 1977 the Special Prosecutor began presenting evidence to a Grand Jury of the Supreme Court of the State of New York, sitting in and for the County of Albany, concerning the plaintiff's interests in and involvement with various nursing homes, health related facilities, and related business entities within the State of New York. Affidavit of Jack J. Pivar, P 4, filed March 14, 1979. The defendants assert that a majority of the presentation of evidence to this grand jury had been completed by the early fall of 1978. Id. at P 7. Be that as it may, on or about December 19, 1978, defendant Pivar went to Boston, Massachusetts, to examine documents relating to plaintiff's petition filed in the Bankruptcy Court of that district. During the course of this inquiry, Pivar reviewed and copied the testimony of a claimant in those proceedings, who had appeared before the Albany County Grand Jury. Id. at P 9. Moreover, Pivar also read plaintiff's testimony. Id.

 Defendant Pivar asserts that he never made a copy of plaintiff's testimony and only cursorily reviewed it with defendant Meekins due to his conclusion that it was irrelevant to their investigation. Affidavit of Jack J. Pivar, PP 9, 10, filed March 14, 1979; Affidavit of John Meekins, P 4, filed March 26, 1979.

 On January 8, 1979, in Albany, New York, defendants Meekins and Pivar met with a member of the law firm representing plaintiff in his bankruptcy proceedings and a member of the law firm representing Trustees in a number of proceedings under the Bankruptcy Act involving entities in which plaintiff has substantial equity interests. During that meeting defendant Pivar discussed, and admitted having read, plaintiff's testimony given in his personal bankruptcy proceedings. Although certain portions of the affidavits submitted by the two attorneys present at this meeting are contradicted and/or explained by defendant Pivar, the defendants have not contested the statement that at no time during the meeting did Meekins or Pivar acknowledge any awareness that plaintiff's bankruptcy testimony was immunized under federal law. See Affidavit of Barry M. Portnoy, filed March 7, 1979; Affidavit of Daniel M. Glosband, filed March 7, 1979.

 Apparently, all that remains to be presented to the grand jury is documentary evidence for which subpoenas were served in September of 1978 and which were Sub judice in the Third Judicial Department of the Appellate Division of the Supreme Court of the State of New York at the time this action was commenced by virtue of a challenge to them made by the plaintiff. See Affidavit of Jack J. Pivar, P 7, filed March 14, 1979; Plaintiff's Reply Memorandum, at 4, filed March 19, 1979.

 Plaintiff maintains that the effect of the defendants' use of his testimony given in the Bankruptcy Court is to deprive him of his right under the Fifth Amendment to be free from compulsory self-incrimination in violation of 42 U.S.C. § 1983 (First Claim For Relief). In response, defendants contend that no use of any kind was made of plaintiff's testimony by the Special Prosecutor's Office. Affidavit of Jack J. Pivar, P 10, filed March 14, 1979.

 Furthermore, plaintiff alleges, upon information and belief, that defendants Hynes and Meekins have conspired to influence the Albany County Grand Jury to vote a true bill against the plaintiff and that defendant Meekins and other persons unknown to the plaintiff have threatened and intimidated witnesses before the grand jury and attempted to prejudice the grand jury against the plaintiff thereby depriving plaintiff of his right under the due process clause of the Fourteenth Amendment to have an impartial and unbiased grand jury determine whether he should be indicted in violation of 42 U.S.C. § 1983 (Second Claim For Relief), § 1985(2) (Third Claim For Relief), and § 1986 (Fourth Claim For Relief). It is asserted that witnesses before the grand jury have confided in plaintiff's counsel that they were, among other things, harassed and intimidated by defendant Meekins and others and that the names of these witnesses would be disclosed by plaintiff's counsel In camera if desired by the Court. Complaint, P 18; Reply Affidavit of Charles A. Stillman, PP 20, 21, filed March 19, 1979.

 It is plaintiff's belief that if he is indicted, regardless of the ultimate outcome of the proceedings, arrangements under Chapter XII of the Bankruptcy Act that are pending in the District of Massachusetts, for three New York facilities, in which he has a proprietary interest, would be jeopardized possibly causing him substantial economic loss. See Affidavit of Charles A. Stillman, PP 11, 12, filed March 7, 1979. Therefore, plaintiff seeks preliminary injunctive relief pending a hearing to be held after plaintiff's attorney has had an opportunity to inspect ...


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