Friedman v. Hi-Li Manor Home for Adults

366 N.E.2d 1322, 42 N.Y.2d 408, 397 N.Y.S.2d 967, 1977 N.Y. LEXIS 2242
CourtNew York Court of Appeals
DecidedJuly 7, 1977
StatusPublished
Cited by21 cases

This text of 366 N.E.2d 1322 (Friedman v. Hi-Li Manor Home for Adults) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friedman v. Hi-Li Manor Home for Adults, 366 N.E.2d 1322, 42 N.Y.2d 408, 397 N.Y.S.2d 967, 1977 N.Y. LEXIS 2242 (N.Y. 1977).

Opinions

Jones, J.

In these three cases we hold that the Deputy [412]*412Attorney-General had authority by the issuance of an office subpoena duces tecum under subdivision 8 of section 63 of the Executive Law to compel the production of books and records of private proprietary homes for adults.

On August 2, 1976 the Governor issued Executive Order No. 36 (9 NYCRR 3.36) directing the Attorney-General, or his deputy "to inquire into all matters concerning the administration, management, control, operation, supervision, funding and quality of private proprietary homes for adults, or any principal, operator, agent, supplier or other person connected therewith”. As predicates for this directive the. order recited that "the treatment and care of elderly citizens in private proprietary homes for adults, and the management and operation of such facilities are matters concerning the public peace, public safety and public justice of the State of New York; and * * * the compensation for that treatment and care is derived in part from public funds, and the State of New York is responsible for licensing and supervision of such facilities; and * * * there have been numerous allegations of violations of law and mistreatment of residents in such facilities; and * * * the New York State Board of Social Welfare has requested you to investigate and prosecute the alleged commission of indictable offenses relating to private proprietary homes for adults”. Thereafter the Attorney-General appointed Charles J. Hynes as his deputy to perform any and all functions and to exercise any and all powers conferred by Executive Order No. 36 in relation to private proprietary homes for adults, and Arthur Friedman was assigned to the office of the deputy as a Special Assistant Attorney-General.

Although two separate private proprietary homes for adults (PPHA) are involved in these cases, the fact patterns and the contentions with respect to each are virtually the same. The Deputy Attorney-General served office subpoenas duces tecum calling for the production of voluminous books and records of two PPHAs and of the corporate landlord of one of such homes. In each case there has been a motion to quash and a motion to compel compliance. Supreme Court sustained each of the three subpoenas and ordered compliance, denying the applications to quash. This disposition was affirmed at the Appellate Division.

Preliminarily it is appropriate to dispose of the Deputy Attorney-General’s claim that the challenges to office , subpoenas raised by the PPHAs were not timely made. The thrust of [413]*413the argument is that the recipient of an office subpoena who desires to challenge its validity should be required to initiate a motion to quash rather than to await the institution of proceedings to compel compliance and then for the first time to raise objection. We reject this argument. In our view the recipient may properly raise his objections when the official issuing the office subpoena first seeks judicial sanction for noncompliance. (Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250, 256; see Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, 234.) Accordingly, we treat the objections to the office subpoenas in all three cases as timely made.

We turn then to the principal question presented by and argued on these appeals—whether the Deputy Attorney-General had authority under subdivision 8 of section 63 of the Executive Law to subpoena records of PPHAs and, in the Oceanaire case, of the landlord of a PPHA.

Subdivision 8 of section 63 of the Executive Law, which confers a power to subpoena witnesses, books and papers, provides: "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 predecessor statute (Executive Law, § 62, subd 8) was enacted during World War I, when the Legislature recognized that a war emergency might create a need for such authority to obtain information concerning sabotage—in effect a standby authority for circumstances in which there might not be time or opportunity for the normal functioning of the legislative process (L 1917, ch 595). After World War I, the authority was continued notwithstanding that the Attorney-General recommended repeal of the statute. Until today, however, there have been but three occasions in which our court has been asked to sustain investigations conducted under the authority of subdivision 8 of section 63 and its predecessor. In Matter of Di Brizzi (Proskauer) (303 NY 206), our court held that recourse to the section could be had to combat organized crime in government. In Matter of Greenspon v Stichman (12 NY2d 1079), we rejected a challenge to an investigation under the section of "the relationship between misconduct or corruption in office by public officials and the faithful execution of the laws by units of government in the State’’. Most recently we held that the section could be [414]*414read as including authority for the investigation of the nursing home industry (Matter of Sigety v Hynes, 38 NY2d 260). This latter holding was based on a combination of compelling factors: the State’s recognized responsibility for the care of the elderly, the quantum of financial support for such care that came from the public treasury, and the existence of widespread corruption in the industry. It was vigorously argued then, however, that authority for such investigation was not properly to be found in subdivision 8 of section 63.

It would seem evident that the course much to be preferred with respect to State-wide investigations of this sort would be the enactment of specific, ad hoc legislative authority for particular inquiries. Thereby need and scope of the inquiry could be determined by the elected representatives of the people, reflecting an informed, current evaluation of the circumstances (cf., e.g., Executive Law, § 70-a, State-wide Organized Crime Task Force).

We are now urged to conclude that, inasmuch as authority has been found in the section for investigation of the nursing home industry, authority should also be found for inquiry into private proprietary homes for adults. Similarities between these two areas of activity are evident. To a large extent the consumers of care and service come from the same sector of our State’s population. Historically the great bulk of financial support has and does come from the public treasury, formerly in direct grants to the homes, now in indirect but equally significant subsidy routed through the residents of the homes.

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Bluebook (online)
366 N.E.2d 1322, 42 N.Y.2d 408, 397 N.Y.S.2d 967, 1977 N.Y. LEXIS 2242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedman-v-hi-li-manor-home-for-adults-ny-1977.