Matter of Brasky v City of New York 2006 NY Slip Op 30744(U) March 15, 2006 Supreme Court, New York County Docket Number: /05 Judge: Lottie E.

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1 Matter of Brasky v Cty of New York 2006 NY Slp Op 30744(U) March 15, 2006 Supreme Court, New York County Docket Number: /05 Judge: Lotte E. Wlkns Cases posted wth a "30000" dentfer,.e., 2013 NY Slp Op 30001(U), are republshed from varous state and local government webstes. These nclude the New York State Unfed Court System's E-Courts Servce, and the Bronx County Clerk's offce. Ths opnon s uncorrected and not selected for offcal publcaton.

2 [* 1]....- SUPREM~ COURT OF THE STATE OF NEW (ork - NEW YORK COU"TY PRESENT: LOTTC c. WLKN:> PART 18 Lotte E. Wlkns Justce ' n the Matter df the Applcaton of BRUCE BRASKV, NDEX NO /06. v - Pettoner, CTY OF NEWYORK, DEPARTMENT OF NVESTGATON, Respondent. MOTON DATE MOTON SEQ. NO. MOTON CAL. NO. _.-; The followng ~apers, numbered 1 to were read on ths moton to/for quash subpoena Notce of Moton/ Order to Shoyv Cause - Affdavts - Exhbts.. Answerng Aff,davts - Exhbts ~-~~---~~----~ Replyng Affld4vts PAPERS NUMBERED Petton and cross-moton are dened and the proceedng dsmssed n accordance wth the attached decson. Dated: ~4~ "> '/;f:j{)j.p Check on~:. ( MAR L tte E. WlknsJ-;s.c. )?. FNAL 015-POSTON Check f approprate: : DO NOT POST NON-FNAL DSPOSTON

3 [* 2] SUP:Kf:ME COURT OF THE ST ATE OF NEW YORK COUNTY OF NEW YORK ---~~ ~ ){ BRUCE BRA.SKY, -aganst- NEW YORK DEPARTMENT OF NVESTGATON, Plantff, PART 18 ndex No /05 Hon. Lotte E. Wlkns J.S.C. DECSON Defendant }{ Lotte E. Wlkns, J.. : Pettoner, Bruce Brasky, seeks an order pursuant to CPLR 2304 quashng ~ : subpoena duces tecum ssued by respondent, New York Cty Department of nvestgaton : ("DOf'). Pettoner further asks for an order drectng DO to tum over the tapes and/or transcrpts rel~tng to the nvestgaton of pettoner's alleged prvate legal practce whle emp1oyed by the Cty. DO cross-moves pursuant to CPLR 2308(b) to compel complance wth the subpoena. n decdng ths matter, the Court consdered pettoner's order to show cause and affrmaton dated October 17, 2005; respondent's notce of cross-moton and affrmaton u.. opposton to the applcaton and n support of the cross moton dated November 18, 2005;1the affrmaton n opposton to respondent's cross-moton and n further support of the applc~ton dated January 4, 2006; and the reply affnnaton n further support of the cross-moton dat,d January 9, When the Court frst sgned the order to show cause on October 20, 200~, t 1

4 [* 3] ssued an order temporarly restranng respondent form enforcng ts ~ubpoena pendng he~g, whch njuncton was further extended pendng detennnaton of ths matter. FACTS On October 5, 1981, Mr. Brasky commenced hs employment wth the New York. Cty Department of Fnance, servng as an attorney. n March 2005, DO, the nvestgatory agency oversee~g all cty actvtes, receved a thrd party complant concernng Mr. Bras~.. The compla~t alleged that Mr. Brasky was volatng the Cty's ethcs rules and regulato~, by. mantanng a prvate legal practce durng hs tenure as a cty employee. As a result, DO commenced an nvestgaton nto ths allegaton, and on June 29, 2005, a Deputy nspector \ General ntervewed Mr. Brasky. Subsequently on July 20, 2005, DO requested that Mr. B~asky produce all documents related to hs alleged prvate legal practce. nstead of complyng wth DOl's request, Mr. Brasky termnated hs employment on August 16, 2005, wthout gvng pror notce. On September 29, 2005, DO resorted to the ssuance of a non judcal nvestgatory~ subpoena, whch requested the producton of"[all] documents ncludng, but not lmted to, lsts, nvoces, bllng records, cash recept journals, bank depost records and tme records refljng,. dentfyng or referencng, by name, all persons on whose behalf you provded legal servce~ for the perod of January 1, 2003 through July 20, 2005." n tum, Mr. Brasky commenced ths proceedng to quash the subpoena 1 MOTON TO QUASH Through Cty Charter secton 803, DO mantans the power to nvestgate ~e actvtes of any cty agency. Ths broad power explctly extends to employees and non- 2

5 [* 4] employees who conduct busness wth the cty. n order for DO to effectvely perfonn ts nvestgatory dutes, DO may ssue non-judcal nvestgatory subpoenas. Pettoner contends that the subpoena must be quashed on varous grounds. Frst, Pettoner submts that DO lacks the authorty to ssue a subpoena aganst a non-cty empl~yee. Further, pettoner argues that the scope of the subpoena evdences DO' s ntent to harass and ntmdate hm. Fnally, pettoner argues that the subpoena would volate attorney clent prvlege, as well as varous consttutonal rghts. All of these arguments lack mert. Pettoner's argument that he s not subject to DO's subpoena powers becau~e he no longer works for the cty goes aganst both the plan meanng nterpretaton of the cty chber an,d well developed case law. The authorty granted under the Cty Charter has been nterp+d to apply not only to cty employees but any ndvdual who possess nformaton related to th~ subject of an nvestgaton (see. Matte: of New YQrk Cty Department of nvestgaton v. ca.bar Passannante et al., 148 AD2d 191, 104 [1st Dept. 1989]. Therefore, even f pettoner had not been employed by the Cty for over twenty years, pettoner would stll be subject to DO's subpoena and nvestgaton, as a person who possess nformaton related to ths nvestgatof. Furthermore, the subpoena and nvestgaton relate wholly to pettoner's actvtes durng hs employment wth the cty. Notwthstandng ths clear applcablty to pettoner, pettoner contnuously fals to gve rruch due credence to the nvestgato~ beng solely based on hs 1~ employment. Pettoner, n essence, attempts to create a loophole for all cty employ~ to to1d nvestgatory subpoenas by smply resgnng, as he has demonstrated. Such a proposton,es not even mert a comment. Pettoner further posts that the subpoena's breadth s ndcatve of an ntent to harass and ntmdate. The Court of Appeals has set forth a three prong test to ensure that 3

6 [* 5] government agences, such as DO, do not ssue subpoenas to authorze an ''unlmted and general nquston" <Matter of Charles A. A 'Hearn v. Commttee on Unlawful Practce of the Law Qf the New York County &wyets' Assoc.. 23 NY2d 916, 918 [ 1969]). To satsfy ths {est, there must be a showng of 1) authorty, 2) relevance, and 3) some bass for the nqustoral; acton J. As dscussed earler, DO mantans broad authorty to ssue subpoenas agankt both cty employees and non-cty employees who possess nformaton related to the nvestgaton (see. Matter of New York Ctv Dept. of nvestgaton v. Passannante. supra). Pettoner unquestonably falls wthn ths range of authorty. Turnng to relevance, petton offers no legtmate argument aganst the relevance of the documents sought. To the extent at DO s nvestgatng pettoner's alleged prvate legal practce, the documents sought are completely geared towards that nvestgaton. Fnally, wth regards to the justfcaton of th subpoena, the Court of Appeals has held that there s no ltmus test to determne a subpoenar s ' justfcaton, but nstead, puts forth a broad analyss approach (Matter of Levn v. Murawsk~ 59 NY2d 35, 42 [ 1983]). n ths case, the relablty of the complant, coupled wth the good Jth bass of DO and the pre-subpoena nvestgaton creates more than adequate grounds to j~ the subpoena. Therefore, the subpoena has met the test set forth by the Court of Appeals. Pettoner further argues that the subpoena volates hs attorney clent prv1ee and consttutonal rghts. However, these arguments also do not have mert. The document sought are "... lsts, nvoces, bllng records, cash recept journals, bank depost records an, tme records...," whch do not dvulge the nature or substance of pettoner's legal servces. Therefore, whle the requested documents may generally relate to pettoner's legal practce~ the documents are of a collateral nature. t s well establshed that such collateral documents ar~ not. 4

7 [* 6].. protected by the attorney clent prvlege~ Matter of Rchard D. Prest v. Rchard A. Hennessy, Jr., 51NY2d62, 69 [1980]). Turnng to pettoner's consttutonal clams, a volaton of a Ffth Amendment rght does not occur untl the commencement of a crmnal tral, and therefore, ths s not the proper juncture to dscuss any such volaton. Whle pettoner also clams a Fourth and Sxth amendment volaton, these clams were not substantated by Pettoner contends that the Cty Charter requres DO to tum over tapes and/~r pettoner, and therefore, no dscusson s warranted. Moton to Compel Dsclosure docwnents related to the nvestgaton. However, the language of the Cty Charter does not warrant such dsclosure to pettoner. The plan language meanng of Cty Charter secton 893(c) requres dsclosure to only the mayor or collllcl who requested the nvestgaton, not the per~on subject to the nvestgaton, n ths case pettoner. Notwthstandng ths plan language meanng, dsclosure to pettoner would go drectly aganst the publc polcy of preservng t ese nvestgatons (Robert Blake v. Borden Co.. et al., 47 Msc. 2d 180 [1965]). Therefore, dsclosure should not be granted. Cross Moton to Compel Complance.... ' l' 'th th b Respondent's cross moton to compe pettoners comp 1ance W1 e su p9ena n ssue s dened wthout prejudce. Subpoenas mantan an nherent power to compel co~lance, and untl pettoner avods the subpoena, nterventon s not necessary. Thus J, pettoner has not avoded the subpoena per se but nvoked hs rghts to challenge the subpo~na. Therefore, untl pettoner tr1ly avods the subpoena, whch s. no longer n dspute, the sub~oena stands alone to compel complance. Accordngly t s, 5

8 [* 7] Ordered and adjudged that pettoner's moton to quash the subpoena ssued by respondent s dened; t s further Ordered that 13ettoner's moton to compel producton of tapes and/or documents rejated to the lnvestgaton s dened; t s further Ordered that respondent's cross moton to compel complance wth the subpoena s dened wthout prejudce. Ths consttutes the decson and judgment of the court. Dated: \'Nv r.l \~ 289P MAR 5 zoos Lotte E WHl<ns 6