Kosmider v Garcia

[*1] Kosmider v Garcia 2012 NY Slip Op 51415(U) Decided on July 13, 2012 Supreme Court, Essex County Meyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 13, 2012
Supreme Court, Essex County

Edward Kosmider and Bethany Kosmider, Plaintiffs,

against

Julie A. Garcia, Individually and as District Attorney of Essex County; MICHAEL P. LANGEY, Individually and as Assistant District Attorney of Essex County; KRISTY SPRAGUE, Individually and as District Attorney of Essex County; TIMOTHY BLATCHLEY, Individually and as a Special District Attorney for Essex County; CYNTHIA BENNETT and RICHARD BENNETT; and JOHN DOES 1-5., Defendants.



924-10



Viscardi, Howe & Rudgers LLP (Dominick J. Viscardi. Esq., of counsel), Ticonderoga, New York, for plaintiffs.

Towne, Ryan & Partners, P.C. (John F. Moore, Esq., of counsel), Albany, New York, for defendants Julie A. Garcia, Individually and as District Attorney of Essex County; Michael P. Langey, Individually and as Assistant District Attorney of Essex County; Kristy Sprague, Individually and as District Attorney of Essex County; and Timothy Blatchley, Individually and as Special District Attorney.

Niles Piller & Bracy PLLC (John Crotty, Esq., of counsel), Plattsburgh, New York, for defendants Richard Bennett and Cynthia Bennett.

Richard B. Meyer, J.

This action arises out of the issuance subpoenas duces tecum to obtain the financial records of plaintiffs Edward Kosmider and Bethany Kosmider (Kosmiders) from two separate financial institutions. The first subpoena was issued on or about December 24, 2009 to the Champlain National Bank of Willsboro, New York, and signed by the defendant Michael P. Langey (Langey) in his capacity as an assistant district attorney for Essex County. At that time, the elected district attorney for Essex County was the defendant Julie A. Garcia (Garcia). This subpoena directed the production of "CERTIFIED copies of any and all bank records and account information for Edward and Bethany Kosmider . . . to include type and number of accounts and all account activity from May 1, 2009 to November 30, 2009". The records were required to be "turn[ed] over to the officer executing this subpoena, as agent of the Grand Jury of the County of Essex" and directed that the bank "not disclose the existence of this investigation or request and to not disclose the existence of this subpoena". The subpoena was accompanied by a letter from Langey dated December 24, 2009 asking that the information be provided December 31, 2009, the date that the then impaneled grand jury was to expire, and to reply to Garcia's office to the attention of "DEBBIE".

The second subpoena, seeking Kosmiders' financial records from the Wright Patman Congressional Federal Credit Union in Oakton, Virginia, was issued on March 1, 2010 in the commonwealth of Virginia on motion of an assistant commonwealth attorney and signed by a judge in the Fairfax County General District Court. The Essex County district attorney at that time was the defendant Kristy Sprague (Sprague). The defendant Timothy Blatchley (Blatchley) is an assistant district attorney in Clinton County now serving as special prosecutor pursuant to an order of this Court dated June 30, 2010.

On November 17, 2010, the Kosmiders commenced this action. The verified complaint filed that date asserted a single cause of action for violation of civil rights under 42 USC §1983 and §1988. Simultaneously with that filing, The Kosmiders applied for a preliminary injunction prohibiting Blatchley from using any and all records secured from Kosmiders' financial institutions before any grand jury and suppressing the same [FN1]. Pending determination of that application, a temporary restraining order was granted based upon the Right to Financial Privacy Act (12 USC §3401 et seq. [RFPA]), CPL §610.20 and §610.25 [FN2], and People v. Natal, 75 NY2d 379, 385, 553 NYS2d 650, 653, 553 NE2d 239, 242, cert. denied 498 US 862, 111 SCt 169, 112 LEd2d 134. Over the course of the next fifteen months, numerous adjournments were granted while an amended summons and complaint, and motions to dismiss both the original and amended complaints, were filed. In the amended complaint, the Kosmiders seek money damages and injunctive relief against the district attorney defendants, alleging causes of action for violations of civil rights under 42 USC §1983 and §1988, including punitive damages, and for [*2]abuse of process and failure to train subordinates. A third cause of action seeks relief only against the remaining defendants, and none of the motions now pending involve those parties or issues. Now pending before the Court are the Kosmiders' application for a preliminary injunction and the following motions and cross-motions by the district attorney defendants'[FN3]: cross-motion to dismiss the original complaint pursuant to CPLR R3211(a)(7) for failing to state a cause of action [FN4]; motion to dismiss the amended complaint pursuant to CPLR R3211 (a) (2), (3) and (7), including failing to serve a notice of claim under County Law §52 [FN5]; and cross-motion to vacate the temporary restraining order and dismiss any claims for relief sought under CPLR article 78 as untimely [FN6].

A.

The notice of claim requirements of County Law §52 do not apply to causes of action arising under federal law (see Felder v. Casey, 487 US 131, 108 SCt 2302, 101 LEd2d 123 [1988]; Pendleton v. City of New York, 44 AD3d 733, 843 NYS2d 648 [2007]). In Felder, the United States Supreme Court held that "enforcement of the notice-of-claim statute in §1983 actions brought in state court so interferes with and frustrates the substantive right Congress created that, under the Supremacy Clause, it must yield to the federal interest" (Felder v. Casey, supra. at 151, 108 S. Ct. at 2313, 101 LEd2d 123 [1988]). Although "States may establish the rules of procedure governing litigation in their own courts[,] . . . where state courts entertain a federally created cause of action, the federal right cannot be defeated by the forms of local practice.' Brown v. Western R. Co. of Alabama, 338 US 294, 296, 70 SCt 105, 106, 94 LEd 100 (1949)" (id., at 138, 108 SCt at 2306, 101 LE2d 123). Similarly without merit is that branch of the district attorney defendants' motion seeking dismissal for lack of subject matter jurisdiction (CPLR R 3211[a][2]). Federal and state courts have concurrent jurisdiction of claims under [*3]§1983 (Felder v. Casey, supra; Haywood v. Drown, 556 US 729, 129 SCt 2108, 173 LEd2d 920 [2009]), and those claims are properly brought in state supreme court (Haywood v. Drown, supra; see also, Welch v. State, 286 AD2d 496, 729 NYS2d 527; Cavanaugh v. Doherty, 243 AD2d 92, 675 NYS2d 143). The motion to dismiss the Kosmiders' §1983 causes of action on the grounds that no notice of claim was filed and for lack of subject matter jurisdiction are thus denied.

The cross-motion to vacate the temporary restraining order and dismiss any claims for relief sought under CPLR article 78 as untimely is also denied since "no more than one [R 3211] motion shall be permitted" (CPLR R 3211[e]), and a party may not serve a cross-motion in response to their own motion (see CPLR R 2215).

B.

On a motion to dismiss a cause of action under CPLR §3211, the Court must "accept the facts alleged as true . . . and determine simply whether the facts alleged fit within any cognizable legal theory (see Rovello v. Orofino Realty, 40 NY2d 633, 389 NYS2d 314, 357 NE2d 970)" (Morone v. Morone, 50 NY2d 481, 484, 429 NYS2d 592, 593, 413 NE2d 1154, 1155),". In performing this analysis, "the pleading is to be afforded a liberal construction (see, CPLR 3026)" (Leon v. Martinez, 84 NY2d 83, 87, 614 NYS2d 972, 974, 638 NE2d 511, 513) and the Court is required to "accord plaintiffs the benefit of every possible favorable inference" (id.) no matter what "an ultimate trial may disclose as to the truth of [those] allegations" (Sanders v. Winship, 57 NY2d 391, 394, 456 NYS2d 720, 722, 442 NE2d 1231, 1233) and "without expressing any opinion as to the plaintiff's ability ultimately to establish the truth of these averments before the trier of the facts" (219 Broadway Corp. v. Alexander's, Inc., 46 NY2d 506, 509, 414 NYS2d 889, 890, 387 NE2d 1205, 1206). "[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail (see Foley v. D'Agostino, 21 AD2d 60, 64-65, 248 NYS2d 121, 125-127; Siegel, Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B, CPLR 3211:24, p. 31; 4 Weinstein-Korn-Miller, NY CivPrac, par. 3211.36)" (Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182, 185, 372 NE2d 17, 20).

"By the plain terms of §1983, two — and only two — allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law. See Monroe v. Pape, 365 US 167, 171, 81 SCt 473, 475, 5 LEd2d 492 (1961)" (Gomez v. Toledo, 446 US 635, 640, 100 SCt 1920, 1923, 64 LEd2d 572 [1980]). "A complaint will survive dismissal unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his (§1983) claim which would entitle him to relief' (Conley v. Gibson, 355 US 41, 45-46, 78 SCt 99, 101-102, 2 LEd2d 80, cited in Batista v. Rodriguez, supra at 397)" (Manti v. New York City Transit Authority, 165 AD2d 373, 379, 568 NYS2d 16, 20 [1991]). Here, the district attorney defendants' December 2010 cross-motion and [*4]October 2011 motion to dismiss for failure to state a cause of action (CPLR R 3211[a][7]) is premised primarily on the assertions that no federal constitutional right of Kosmiders was violated, that the subpoenas in question were grand jury subpoenas exempt from the RFPA under 12 USC §3414(i), and that these defendants are not a "government authority" within the ambit of that statutory scheme. None of these arguments have merit.

"[T]he §1983 remedy broadly encompasses violations of federal statutory as well as constitutional law" (Maine v. Thiboutot, 448 US 1, 4, 100 SCt 2502, 2504, 65 LEd2d 555 [1980]). The Kosmiders clearly possess a federal statutory right of privacy in and to their financial records with the subject financial institutions under the RFPA. "The [RFPA] prevents government access to records of customer accounts at financial institutions, except where a customer of a financial institution has authorized that access, or where disclosure is in response to an administrative subpoena or summons, search warrant, judicial subpoena, or formal written request which meets the specific requirements set forth in the statute" (Botero-Zea v. U.S., 915 FSupp 614, 616-617 [SDNY, 1996]; see also, McDonough v. Widnall, 891 FSupp 1439 [1995 ]). Notably, a financial institution [FN7] "shall not release the financial records of a customer until the Government authority seeking such records certifies in writing to the financial institution that it has complied with the applicable provisions of this chapter" (12 USC §3403[b]), and is prohibited from providing "any Government authority access to or copies of, or the information contained in, the financial records of any customer except in accordance with the provisions of this chapter" (12 USC §3403[a]). "Both Congress and the Executive regarded the Act as a compromise between a bank customer's right of financial privacy and the need of law enforcement agencies to obtain financial records pursuant to legitimate investigations.' United States v. Frazin, 780 F.2d at 1465; See H.R.Rep. No. 1383 at 34 reprinted in 1978 U.S.Code Cong.Ad.News 9273, 9306." (Russell v. Department of Air Force, 915 FSupp 1108, 1116 [D.Colo.,1996]). "Therefore, it seeks to strike a balance between the customers' right of privacy and the need of law enforcement agencies to obtain financial records pursuant to legitimate investigations. H.R.Rep. No. 1383, 95th Cong., 1st Sess. 33, reprinted in 1978 U.S.Code Cong. & Ad.News 9273, 9305." (Donovan v. National Bank of Alaska, 696 F2d 678, 683 [C.A.Alaska,1983]).

The complaint sufficiently alleges, at least as to Langey, conduct in violation of those rights under color of state law. Specifically, the subpoena duces tecum was issued by Langey to Champlain National Bank and he directed the bank as to how it was to comply. Both the subpoena and Langey's accompanying letter, on their faces, violate both CPL §610.20(2) and §610.25(1). The former statute limits the authority of a district attorney to issue a subpoena, including a subpoena duces tecum (CPL §610.10[3]), to situations "in which he is conducting the prosecution of a criminal action or proceeding . . . for the attendance in such court or a grand jury thereof of any witness whom the people are entitled to call in such action or proceeding". CPL §610.25[1] specifically vests exclusive possession of subpoenaed evidence in the court or grand jury, affording the party who issued the subpoena duces tecum "a reasonable opportunity to [*5]inspect such evidence". Although Langey claims in his December 1, 2010 affidavit that there was a sitting grand jury at the time he issued the subpoena and letter, he commanded the bank to comply on the ostensible last day of the grand jury's existence when it was not even in actual session, and he did not provide for the subpoenaed materials to be delivered to the court or the grand jury. Moreover, he never furnished those materials to the court or to any empaneled and sitting grand jury thereafter. While the state attorney general has the power to issue investigatory subpoenas (see Executive Law §63[12]), a district attorney does not. "It has long been recognized that District Attorneys may not issue subpoenas except through the process of the court, and they exercise the power to compel witnesses to produce physical evidence only before a Grand Jury or a court where a proceeding is pending (CPL 610.20; People v. Hamlin, 58 AD2d 631, 632, 395 NYS2d 679; People v. Boulet, 88 Misc 2d 353, 354, 388 NYS2d 250; People v. Arocho, 85 Misc 2d 116, 379 NYS2d 366)" (People v. Natal, 75 NY2d 379, 385, 553 NYS2d 650, 653, 553 NE2d 239, 242 [1990]; see also, People v. Carkner, 213 AD2d 735, 736-737, 623 NYS2d 350, 353, lv. denied 85 NY2d 970, 629 NYS2d 730, 653 NE2d 626, denied on reconsideration 86 NY2d 733, 631 NYS2d 613, 655 NE2d 710).

To the extent that these moving defendants claim the exemption afforded grand jury subpoenas under 12 USC 3414(i), they have failed to acknowledge the specific requirement of such section that only "a court shall have authority to order a financial institution, on which a grand jury subpoena for customer records has been served, not to notify the customer of the existence of the subpoena or information that has been furnished to the grand jury" based upon written application of the "government authority" setting forth the circumstances prescribed by 12 USC §3409. Only the March 1, 2010 Virginia subpoena issued to the Wright Patman Congressional Federal Credit Union, which provided for delayed notification, was court-ordered. There is no indication that Langey ever applied for or obtained court authorization for delayed notification.

As to the applicability of the RFPA to the district attorney defendants, they are clearly subject to its provisions. "This Court has long made clear that federal law is as much the law of the several States as are the laws passed by their legislatures. Federal and state law together form one system of jurisprudence, which constitutes the law of the land for the State'" (Haywood v. Drown, supra at 734-735, 129 SCt at 2114, 173 LEd2d 920 [2009]). "The term United States' may be used in any one of several senses. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of nations. It may designate the territory over which the sovereignty of the United States extends, or it may be the collective name of the states which are united by and under the Constitution" (Hooven & Allison Co. v. Evatt, 324 US 652, 671-672, 65 SCt 870, 880, 89 LEd2d 1252 [1945]). There is nothing in the RFPA which indicates that the protections afforded under that Act apply only when a federal "government agency" seeks customer records. Certainly, had Congress so intended it would have limited the RFPA to federal agencies since in the context of the Act the term "United States" cannot reasonably be read to refer to a sovereign nation vis-à-vis other nations, nor a geographic area. Within the ambit of the RFPA are financial institutions "located in any State or territory of the United States" (12 USC §3401[1]), not just those chartered under federal law, as [*6]well as "any State banking or securities department or agency" having "statutory authority to examine the financial condition, business operations, or records or transactions of" a financial institution (12 USC §3401[7]). To the extent that other trial courts have held to the contrary (see Matter of Grand Jury Applications for Court-Ordered Subpoenas and Nondisclosure Orders-December 1988 Term, 142 Misc 2d 241, 536 NYS2d 939 [1988], this court disagrees and declines to follow them. Furthermore, this Court has not been directed to any legal authority giving any state officer or agency the authority to compel a financial institution, which is specifically subject to the RFPA, to violate its own independent obligations under that Act by way of a subpoena duces tecum which not only transgresses state law but which is also beyond the authority of these defendants to issue under state law.

The motions to dismiss the first and second causes of action in the amended complaint as against Langey are denied in all respects. The Kosmiders allege here, just as it was found in Natal, that "[b]y circumventing the court, [Langey] avoided all the protections provided against abuse of the subpoena process, and succeeded in transforming a court process into a function of his own office (see generally, American Bar Ass'n, Standards Relating to Administration of Criminal Justice, Prosecution Function § 3.1[d] [1974])" (People v. Natal, supra). Under the circumstances alleged here, Langey may be entitled to qualified rather than absolute immunity: " The entitlement of a prosecutor to absolute immunity from a claim for damages against him in his individual capacity on account of his official actions depends principally on the nature of the function performed, not on the office itself.' (Ying Jing Gan v. The City of New York, 996 F2d 522, 530 [2d Cir.1993]). Where the prosecutorial activities are intimately associated with the judicial phase of the criminal process,' e.g., the initiat[ion of] a prosecution,' the prosecutor is entitled to absolute immunity from liability under section 1983. ( Id., at 530 quoting Imbler v. Pachtman, 424 US 409, 430, 431, 96 SCt 984, 995, 996, 47 LEd2d 128). However, prosecutorial activities that are characterized as administrative or investigative, such as the issuance of grand jury subpoenas, merit less protection. (Ying Jing Gan v. The City of New York, supra, 996 F.2d at 528). Thus, prosecutors acting in an investigative' or administrative' capacity are entitled only to qualified immunity. (Barr v. Abrams, 810 F2d 358, 361 [2d Cir 1987])." (Rodrigues v. City of New York, 193 AD2d 79, 85, 602 NYS2d 337, 341 [1993); see also, Van de Kamp v. Goldstein, 555 US 335, 342, 129 SCt 855, 861, 172 LEd2d 706 [2009] ["absolute immunity may not apply when a prosecutor is not acting as an officer of the court,' but is instead engaged in other tasks, say, investigative or administrative tasks."]).

"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' Harlow v. Fitzgerald, 457 US 800, 818, 102 SCt 2727, 73 LEd2d 396 (1982)" (Pearson v. Callahan, 555 US 223, 231, 129 SCt 808, 815 [2009]). Whether Langey is so protected here, in light of Natal and the language of CPL [*7]§610.20(2) and §610.25(1), is a matter for another day.

C.

The first and second causes of action in the amended complaint are dismissed, however, as against Sprague and Blatchley, and denied at this initial pleading stage as to Garcia. It is alleged in the first cause of action in the amended complaint that Garcia, Sprague and Blatchley are "chief policy making officials in and for the county of Essex [who] established, approved and ratified customs, practices, policies and usages in issuing subpoenas illegally and at times when no grand jury was empanelled for the purpose of, and as part of, an investigation, commonly known as office subpoenas', and caused, approved, ratified and directed their assistant District Attorney Michael A. Langey, by said policies, practices and customs to issue an illegal subpoena duces tecum on December 24, 2009 upon Champlain National Bank . . ." Sprague is also alleged to have caused the subpoena to be issued in Virginia upon the Wright Patman Congressional Federal Credit Union. The second cause of action is based upon an alleged failure "to train and supervise and associates in the proper and legal use of subpoenas and as a result of their failure to do so were deliberately indifferent to the constitutional rights of plaintiffs and others similarly situated".

A municipal officer may not be held vicariously liable under §1983 for the acts of his or her employees on a theory of respondeat superior (see, Monell v. Department of Social Services of City of New York, 436 US 658, 691, 98 SCt 2018, 2036, 56 LEd2d 611 [1978]). An officer "can be sued directly under §1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" or is performed "pursuant to governmental custom' even though such a custom has not received formal approval through the body's official decisionmaking channels" (id., at 690-691, 98 SCt at 2035-2036, 56 LEd2d 611). "In limited circumstances, a local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for purposes of §1983. A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train. See Oklahoma City v. Tuttle, 471 U.S. 808, 822—823, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985) (plurality opinion) ("[A] policy' of inadequate training' " is "far more nebulous, and a good deal further removed from the constitutional violation, than was the policy in Monell "). To satisfy the statute, a municipality's failure to train its employees in a relevant respect must amount to deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.' Canton, 489 US, at 388, 109 SCt 1197. Only then can such a shortcoming be properly thought of as a city policy or custom' that is actionable under § 1983.' Id., at 389, 109 SCt 1197."[*8] [D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.' Bryan Cty., 520 US, at 410, 117 SCt 1382. Thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program. Id., at 407, 117 SCt 1382. The city's policy of inaction' in light of notice that its program will cause constitutional violations "is the functional equivalent of a decision by the city itself to violate the Constitution.' Canton, 489 US, at 395, 109 SCt 1197 (O'Connor, J., concurring in part and dissenting in part). (Connick v. Thompson, 131 SCt 1350, 1359-360, 179 LEd2d 417 [2011]).

Here, Blatchley is not a district attorney. He is an assistant district attorney employed by the Clinton County District Attorney, the latter being appointed by this Court in June 2010 as a special district attorney (County Law §701) long after the subject subpoenas were issued. Blatchley could not adopt any policies or practices, approve or ratify any customs, nor fail to train, with respect to the Essex County District Attorney's Office, particularly preceding his involvement in the criminal case.

Sprague did not issue any subpoena here, and there are no allegations in the first cause of action in the amended complaint that she personally committed or engaged in any of the underlying acts. Also, Sprague was not in office at the time Langey issued the invalid subpoena upon the Champlain National Bank. The March 1, 2010 Virginia subpoena was issued pursuant to court order, appears not to be in violation of the RFPA, and the Court's attention has not be directed to any provision of Virginia law with which that subpoena purportedly does not comply. The allegations of the amended complaint fail to sufficiently allege a policy, practice or custom during Sprague's two months in office of issuing "office subpoenas" for investigatory purposes, or that there were more than one or two isolated instances that such subpoenas were used during that time such that training was necessary or appropriate. This is particularly so "[i]n light of [the] regime of legal training and professional responsibility" imposed upon "[p]rosecutors [who] are not only equipped but are also ethically bound to know [the law] and to perform legal research when they are uncertain. A district attorney is entitled to rely on prosecutors' professional training and ethical obligations in the absence of specific reason, such as a pattern of violations, to believe that those tools are insufficient to prevent future constitutional violations in "the usual and recurring situations with which [the prosecutors] must deal. [footnote omitted] Canton, 489 US, at 391, 109 SCt 1197" (Connick v. Thompson, supra at 131 SCt 1363).

While many of the foregoing principles apply to Garcia, because all allegations must be accepted as true and the Kosmiders afforded all favorable inferences, dismissal of the causes of action against her at this time would be premature.

The Court has considered the other issues raised by the parties on the various motions to dismiss, and the same are without merit. [*9]

D.

"To obtain a preliminary injunction, plaintiff [is] required to establish the likelihood of ultimate success on the merits, irreparable injury and a balancing of equities in [its] favor' (Ulster Home Care v. Vacco, 255 AD2d 73, 76, 688 NYS2d 830 [1999]; Accord Town of Elmira v. Hutchison, 53 AD3d 939, 940, 862 NYS2d 196 [2008])" (Confidential Brokerage Services, Inc. v. Confidential Planning Corp., 85 AD3d 1268, 1269, 924 NYS2d 207, 208). " The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual' (Ruiz v. Meloney, 26 AD3d 485, 486, 810 NYS2d 216). The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court' (Arcamone-Makinano v. Britton Prop., Inc., 83 AD3d 623, 625, 920 NYS2d 362)" (Perpignan v. Persaud, 91 AD3d 622, 622-623, 936 NYS2d 261, 262 [2012]).

After weighing the requisite factors, the Kosmiders' application for a preliminary injunction is granted. Blatchley shall, within ten (10) days hereof file with the clerk of this court (1) all records obtained by way of the complained from the Champlain National Bank and the Wright Patman Congressional Federal Credit Union, as well as all fruits thereof in the possession of the special district attorney, law enforcement and any other third parties, including but not limited to notes, analyses, computations, and reports; and (2) a sworn statement that to the best of his knowledge and after due diligence there are no such documents or materials in the possession of any person, party or agency other than the aforesaid financial institutions. All such documents and materials will be retained by the clerk, and shall not be disclosed, pending further order of this Court. However, nothing herein shall prohibit the special district attorney from issuing proper subpoenas and lawfully obtaining the Kosmiders' financial records from financial institutions for presentation to the grand jury in compliance with law.

It is so ordered, all without costs.

ENTER

_________________________________

Richard B. Meyer, A.J.S.C. Footnotes

Footnote 1:The application was supported only by the verified complaint, which "may be utilized as an affidavit whenever the latter is required" (CPLR §105[u], R6312[a]).

Footnote 2:

Footnote 3:Garcia, Langey, Sprague, and Blatchley.

Footnote 4:Notice of cross-motion dated December 30, 2010 supported by an affidavit of Michael Rhodes-Devey, Esq. sworn to December 30, 2010 with exhibit A and memorandum of law. In opposition, plaintiffs submitted an affirmation of Dominick J. Viscardi, Esq. (not dated), affidavits of Bethany Kosmider and Edward Kosmider sworn to February 7, 2011, exhibits A through C, and a memorandum of law.

Footnote 5:Notice of motion dated September 28, 2011 supported by an affidavit of John C. Moore, Esq. sworn to September 28, 2011 with exhibit A and memorandum of law. Plaintiffs submitted the following opposing papers : affirmation of Brian K. Breedlove, Esq. dated November 21, 2011 with exhibits 1 through 4, and a memorandum of law.

Footnote 6:Notice of cross-motion dated December 11, 2011 supported by an affirmation of John C. Moore, Esq. dated December 7, 2011 with exhibits 1 (affidavit of Michael P. Langey, Esq. sworn to December 1, 2010) and 2 and memorandum of law. In opposition, plaintiffs submitted an affirmation by Brian K. Breedlove, Esq. dated January 16, 2012 and a memorandum of law.

Footnote 7: including any "officer, employees, or agent" thereof (12 USC §3403[a]).