Rembrandt Painting & Paperahanging, Inc. v. Department of Investigation

46 A.D.2d 677, 359 N.Y.S.2d 910, 1974 N.Y. App. Div. LEXIS 3913

Opinion

In a proceeding pursuant to CPLR 2304 to quash three subpoenas duces tecum, petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County, entered June 13, 1974, as directed petitioners to turn over to respondent all books and records called for in the subpoenas and imposed costs and a penalty upon petitioners. Order modified by (1) striking therefrom the second decretal paragraph and substituting therefor a provision granting respondent’s cross motion only to the extent of directing petitioners to comply fully with the subpoenas duces tecum and denying said cross motion in all other respects and (2) striking from the third decretal paragraph thereof the words “ turn over ” and by substituting therefor the word “ produce ”. As so- modified, order affirmed insofar as appealed from, without costs. After being served with the three subpoenas duces tecum, petitioners made the motion under review, to quash the subpoenas, as they were entitled to do under CPLR 2304. Accordingly, it was error for the Special Term to impose costs and a penalty on petitioners at the conclusion of the proceedings at Special Term. Under the subpoenas duces tecum, respondent would have the right to photostat or inspect the books and records in 'the presence of appellants, but not the right to retain them. Gulotta, P. J., Hopkins, Shapiro, Christ and Munder, JJ., concur.