Levin v. Murawski , 450 N.Y.S.2d 309 ( 1982 )

— Order, Supreme Court, New York County (Okin, J.), entered June 19, 1981 is reversed, on the law, petitioner’s motion to quash the subpoena duces tecum issued by appellant is denied, and the cross motion compelling petitioner to comply with said subpoena is granted, and petitioner is directed to comply with said subpoena duces tecum, all without costs. The State Board for Professional Medical Conduct has subpoenaed the records of petitioner physician with respect to three named patients. The subpoena indicates that it is “in aid of an investigation by a Committee thereof to determine what action is to be taken as to warren levin, m.d. concerning his alleged professional medical misconduct.” In support of the subpoena, appellant, the executive secretary of the board, states that the Office for Professional Medical Conduct received'a complaint alleging professional misconduct by petitioner concerning methods of treatment of particular patients. It is fairly implicit that the patients referred to are or include the patients whose records are sought by this subpoena. Section 230 (subd 10, par [a]) of the Public Health Law provides that the board, “may investigate on its own any suspected professional misconduct, and shall investigate each complaint received regardless of the source.” Paragraph (l) of subdivision 10 provides that the board “may examine and obtain records of patients in any investigation or proceeding by the board acting within the scope of its authorization.” It further appears .that a screening committee of the board investigating the complaint found there was insufficient information available at the present time to make a determination whether or not a hearing would be warranted and requested that the investigation be continued, and that subpoenas be issued in aid of that investigation. In connection with the requirement of showing of justification for the administrative subpoenas, the Court of Appeals said in Myerson v Lentini Bros. Moving & Stor. Co. (33 NY2d 250, 257-260): “Logically, the showing required will depend on the breadth of the subpoena and the status of the investigation at the time the subpoena issues * * * [T]he showing to be made was related to the breadth of the inquiry and the extent of the investigation preceding the subpoena * * * In short, in this case, as was bordered upon in the A’Hearn case, the scope of relevancy and materiality overlaps with the risks and possible fact of unjustified harassment. Less of a showing should be required for a preliminary or tentative inquiry, and more for one that might otherwise be causelessly broadened into an unlimited examination of the business affairs of an enterprise (Matter of A’Hearn v. Committee on Unlawful Practice of Law of N. Y. County Lawyers’ Assn., 23 N Y 2d, at pp. 918-919; cf. Carlisle v. Bennett, 268 N. Y. 212, 217, supra).” In the present case we note that very limited scope of the subpoena, calling for the records of only three named patients and the preliminary and tentative nature of the inquiry. Further, the subpoena duces tecum does not require petitioner to testify. “Any person may comply with a subpoena duces tecum by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.” (CPLR 2305, subd [b].) We think a sufficient basis has been shown for this very limited subpoena in this preliminary and tentative inquiry that is clearly designed to determine whether any basis exists for further investigation. Concur — Murphy, P. J., Sandler, Carro and Silver-man, JJ.