Virginia Parkhouse v. Stringer

55 A.D.3d 1, 863 N.Y.S.2d 400
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 19, 2008
StatusPublished
Cited by1 cases

This text of 55 A.D.3d 1 (Virginia Parkhouse v. Stringer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Virginia Parkhouse v. Stringer, 55 A.D.3d 1, 863 N.Y.S.2d 400 (N.Y. Ct. App. 2008).

Opinion

OPINION OF THE COURT

Acosta, J.

This matter presents two significant issues. The first is whether the Department of Investigation of the City of New York (DOI) has the authority, while conducting an investigation, to subpoena testimony from a private citizen who, although not a New York City employee or in privity with the City, has information relevant to a DOI investigation. If this issue is resolved in the affirmative, then the second must be addressed—whether petitioner is entitled to First Amendment protection regarding her statements at a New York City Landmarks Preservation Commission (LPC) hearing, in which she allegedly spoke on behalf of an elected official without authorization, and then misstated that official’s position. We hold that DOI has the authority to subpoena petitioner, and that petitioner’s First Amendment rights will not be unconstitutionally infringed upon if she complies with DOI’s subpoena.

Petitioner is a long-standing volunteer of Landmark West!, a nonprofit community group whose mission is to preserve the architectural heritage of the Upper West Side of Manhattan. As a committed volunteer, petitioner’s activities on behalf of Landmark West! include testifying at public hearings before LPC, which is the agency charged with identifying and designating landmarks and buildings in the City’s historic districts.1

The facts of this case stem from LPC’s public hearing held on October 17, 2006 to determine whether the historic Dakota [4]*4Stables and New York Cab Company Stables should be given landmark status. Petitioner offered into evidence an altered version of a letter written by respondent Borough President Stringer, which she had obtained through her affiliation and volunteer work with Landmark West!.

Stringer’s letter in support of landmark status for the two stables was dated August 14, 2006 and addressed to LPC’s Chair, with a copy sent to Landmark West!. In relevant part, the letter stated:

“I am writing regarding two historic stable buildings . . . Both are historic fixtures of Manhattan’s Upper West Side and should be preserved. I strongly urge you to calendar these two important buildings for public hearing by the Landmarks Preservation Commission. . . .
“I ask that you move to calendar these two buildings and protect an important part of the history of the development of the Upper West Side.”

After circulating the letter, Stringer learned that one of the stables’ original facade had already been destroyed, and thus decided to no longer support landmark designation for that structure. However, according to the record, he had no further communication with LPC regarding the stables or his change of position. When Stringer learned that the stables’ landmark status would be considered at an LPC meeting to be held on October 17, 2006, he declined to attend, but sent an aide to monitor the proceedings.

Petitioner attended this meeting, signing in as a representative of Landmark West!. She asked to speak, stating that she was “volunteering today to read the statement of Borough President Scott Stringer” (emphasis added). Petitioner then read an altered version of Stringer’s August 14th letter, removing Stringer’s request that the two stables be calendared by LPC, and inserting alternative language, as follows:

“I am writing regarding two historic stables. . .
Both are historic figures [sic] of Manhattan’s Upper [5]*5West Side and should be preserved. I strongly urge you to calendar these two important buildings for public hearing by the [LPC]. . . .
“I ask that you move to calendar these two buildings and immediately protect an the important part of the history of the development of the Upper West Side and landmark these buildings.”

Petitioner then submitted the letter, with her handwritten changes, to LPC.2 These handwritten changes, however, were not specifically identified as coming from petitioner, and could have been construed as changes made by Stringer himself.3

In a letter dated November 27, 2006, Stringer’s counsel informed LPC that petitioner was not authorized to speak on Stringer’s behalf and that neither she nor Landmark West! had any affiliation with Stringer. Counsel’s letter also stated that Stringer was concerned that any person and/or organization may have falsely induced reliance from a public agency based on representations appearing to derive from the authority of an elected official or public servant. Such conduct is highly inappropriate and, if pursued with the intent to mislead, a potential violation of Penal Law § 190.25 proscribing criminal impersonation, an offense that includes acting with intent to cause another to rely upon pretended official authority.

In February 2007, LPC filed a complaint with DOI, alleging that petitioner had misrepresented the content of Stringer’s letter at the October 17, 2006 meeting. Thereafter, DOI commenced an investigation and sought to interview petitioner. She refused a consensual meeting and was consequently served with an administrative subpoena ad testificandum on May 24, 2007.

In response to petitioner’s motion to quash the subpoena and in support of DOI’s cross motion to compel, Walter M. Arsenault, First Deputy Commissioner for DOI, averred that although petitioner had taken the position that there was no rea[6]*6son for DOI to interview her, “several unanswered questions remain.” For example, he noted that a “first-hand” account of petitioner’s and Miller’s roles in the process would “help DOI better understand whether Petitioner, Ms. Miller and/or Landmarks [s/c] West! engaged in a deliberate effort to improperly influence official government proceedings.” It would also help DOI determine whether to make “policy and procedure recommendations ... to LPC in order to ensure that persons who appear before LPC are in fact representing who they claim to represent.” Lastly, DOI wanted to obtain petitioner’s “side of the story before determining whether or not to make a criminal referral” of the matter.

As a threshold matter, we must determine whether petitioner is subject to DOI’s jurisdiction. New York City Charter § 803 (d) gives DOI’s Commissioner jurisdiction over “any agency, officer, or employee of the city, or any person or entity doing business with the city, or any person or entity who is paid or receives money from or through the city or any agency of the city.”4 Moreover, DOI may subpoena private individuals as part of its investigatory powers pursuant to Charter § 805.5 Indeed, the City’s investigatory and subpoena power extends to “any person, even though unconnected with city employment, when there are grounds present to sustain a belief [that] such person has information relative to the subject matter of the investigation” (Matter of Weintraub v Fraiman, 30 AD2d 784, 784-785 [1968], affd 24 NY2d 918 [1969]). It is evident that petitioner’s testimony at LPC’s hearing was “relative” to DOI’s investigation.

Petitioner argues that inasmuch as she is not an employee, agent or officer of a city agency and does not receive money [7]*7from or through the City or any of its agencies, DOI cannot subpoena her because she cannot be the subject of an investigation.

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Related

Parkhouse v. Stringer
912 N.E.2d 48 (New York Court of Appeals, 2009)

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Bluebook (online)
55 A.D.3d 1, 863 N.Y.S.2d 400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/virginia-parkhouse-v-stringer-nyappdiv-2008.