Summary
In Napatco, the Court of Appeals found that the Attorney General's failure to provide evidence in the record of third-party complaints is not fatal to a subpoena issued under subdivision 12 of section 63 of the Executive Law. Instead, the Court held that the absence of any factual predicate is fatal to the subpoenas.
Summary of this case from In the Matter of The Application of Eric T. Schneiderman v. RillenOpinion
Argued January 12, 1978
Decided February 9, 1978
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ABRAHAM J. GELLINOFF, J.
Louis J. Lefkowitz, Attorney-General (Paul S. Shemin, Samuel A. Hirshowitz and Philip Weinberg of counsel), for appellant.
Charles G. Mills IV and Samuel N. Greenspoon for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
The Attorney-General is granted broad authority to conduct investigations, on the complaint of others or on his own information, with respect to illegal business practices and the unlawful practice of law. In furtherance thereof he is authorized to issue subpoenas under subdivision 12 of section 63 of the Executive Law. We have held, however, that there must be some factual basis shown to support the subpoena (Myerson v Lentini Bros. Moving Stor. Co., 33 N.Y.2d 250, 258). It is not fatal in this instance that there is no evidence in the record of third-party complaints; it is fatal that there is no evidence of any sufficient factual predicate to support the subpoena. All that is tendered is a piece of advertising copy and a single-form letter of petitioner, the latter apparently sent to lawyers engaged in general practice. The texts of both the advertisement and the form letter are too equivocal; read as the Attorney-General would read them they can be said to constitute an offer to engage in activities prohibited by subdivision 1 of section 495 of the Judiciary Law. On the basis of an arbitrary resolution of the equivocality in a manner adverse to petitioner and favorable to him, the Attorney-General asserts that he has authority to pursue his suspicions. The minimal, equivocal documentary proof in this case with no other proof of any sort to support suspicion of illegality is not sufficient to sustain the subpoena, and it therefore should be quashed.
On our disposition of the appeal on this basis we do not reach or consider petitioner's contentions that this subpoena duces tecum is impermissibly overbroad.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.