Opinion
Argued October 7, 1985
Decided October 24, 1985
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Alfred M. Ascione, J.
Stuart A. Summit, Richard A. Wilsker, Randy L. Levine and Barbara Hoey for appellant.
Robert Abrams, Attorney-General (Howard B. Friedland, Robert Hermann, Carlin Meyer and Jane Lauer Barker of counsel), for respondent.
MEMORANDUM.
The appeal should be dismissed.
In this proceeding to quash a subpoena it is conceded that the records were surrendered in accordance with the subpoena when the Appellate Division refused to grant a stay pending the appeal to that court. There is no basis for this court to exercise its discretion to retain the appeal despite the mootness (cf. Matter of Barbara C., 64 N.Y.2d 866) since there is no showing that the issue is the type likely to evade review. Indeed, a proceeding relating to the Commissioner's subsequent efforts to enforce the statute at issue is still pending in the lower courts.
Chief Judge WACHTLER and Judges JASEN, MEYER, KAYE, ALEXANDER and TITONE concur; Judge SIMONS taking no part.
Appeal dismissed, without costs, in a memorandum.