In re Schwartz

11 Misc. 2d 439, 173 N.Y.S.2d 157, 1958 N.Y. Misc. LEXIS 3698

• Court: New York Supreme Court
• Decided: March 14, 1958
• Status: Published

Opinion

Benedict D. Dineen, J.

Petitioner seeks an order to direct the respondent to issue a subpoena in the form annexed to the moving papers. Petitioner has been charged with misconduct and pursuant to the Civil Service Law has been brought up on charges in connection with which a hearing is now pending. Petitioner presented the subpoena in question to the hearing officer who refuses to sign or issue the same. It is petitioner’s contention that she is being deprived of a substantial right to produce witnesses and certain books in their possession upon which books she relies to prove her defense. The court appreciates the plight in which the petitioner finds herself. However, no proceeding or action is pending in this court and the charges made against the petitioner are being presented at an administrative hearing. Section 22 of the Civil Service Law provides for appeal to the courts from an adverse determination pursuant to article 78 of the Civil Practice Act but under this latter procedure section 1285 of the Civil Practice Act prohibits a review where there has been no final determination of the rights of the parties. What is sought in the present instance is a review of an intermediate determination of a matter in connection with and incidental to the administrative process amounting to nothing more than a ruling during the hearing. If the petitioner is acquitted of the charges the matter is at an end and if found guilty of the charges such final determination is subject to review and petitioner at that time could raise the question of the refusal to issue the subpoena and a determination made whether such refusal was proper. It appears that every legal right of the petitioner would be preserved on such review.

The petition is dismissed and cross petition granted.