Matter of Brasky v City of New York

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Matter of Brasky v City of New York 2006 NY Slip Op 30744(U) March 15, 2006 Supreme Court, New York County Docket Number: 11453 Judge: Lottie E. Wilkins Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] . I ...-· SUPREM~ COURT OF THE STATE OF NEW(oRK PRESENT: LOTTIC c. NEW YORK COU!"TY PART WILKIN:> Lottie E. Wilkins Justice 18 ' I I I In the Matter df the Application of BRUCE BRASKV, 114539/06 INDEX NO. Petitioner, MOTION DATE . v- MOTION SEQ. NO. _.-;.0.-..01......__ _ CITY OF NEW!YORK, DEPARTMENT OF INVESTIGATION, Respondent. MOTION CAL. NO. I I The following ~apers, numbered 1 to _ _ were read on this motion to/for quash subpoena I I I I I PAPERS NUMBERED Notice of Motion/ Order to Shoyv Cause - Affidavits - Exhibits .•. Answering Aff,davits - Exhibits I ~-~~---~~----~ Replying Affld4vits - - - - - - - - - - - - - - - - ! Petition and cross-motion are denied and the proceeding dismissed in accordance with the attached decision. Dated: ~4~ . Check on~: I"> '/;f:J{)J.p ( MAR I 5 2006 )i?. FINAL 015-POSITION Check if appropriate: L ttie E. WilkinsJ-;s.c. · · : DO NOT POST I NON-FINAL DISPOSITION [* 2] SUP:Kf:ME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---~~------------------------~---------------------------------------){ BRUCE BRA.SKY, PART 18 i I Index No. 114539/05 Plaintiff, Hon. Lottie E. Wilkins -against- J.S.C. NEW YORK DEPARTMENT OF INVESTIGATION, DECISION Defendant. ------------------------------------------------------------------------.}{ Lottie E. Wilkins, J .. : Petitioner, Bruce Brasky, seeks an order pursuant to CPLR §2304 quashing ~ I ! I subpoena duces tecum issued by respondent, New York City Department of Investigation : : ("DOf'). Petitioner further asks for an order directing DOI to tum over the tapes and/or transcripts rel~ting to the investigation of petitioner's alleged private legal practice while i emp1oyed by the City. DOI cross-moves pursuant to CPLR §2308(b) to compel compliance with I i the subpoena. I In deciding this matter, the Court considered petitioner's order to show cause and I I affirmation dated October 17, 2005; respondent's notice of cross-motion and affirmation .. ui I opposition to the application and in support of the cross motion dated November 18, 2005;1the affirmation in opposition to respondent's cross-motion and in further support of the applic~tion dated January 4, 2006; and the reply affinnation in further support of the cross-motion dat,d ! January 9, 2006. When the Court first signed the order to show cause on October 20, 200~, it I 1 [* 3] I issued an order temporarily restraining respondent form enforcing its ~ubpoena pending he~g, I I I which injunction was further extended pending detennination of this matter. I FACTS On October 5, 1981, Mr. Brasky commenced his employment with the New York . I I City Department of Finance, serving as an attorney. In March 2005, DOI, the investigatory ! ! agency oversee~g all city activities, received a third party complaint concerning Mr. Bras~.. The compla~t alleged that Mr. Brasky was violating the City's ethics rules and regulatio~, by . I I maintaining a private legal practice during his tenure as a city employee. As a result, DOI I I commenced an investigation into this allegation, and on June 29, 2005, a Deputy Inspector \ I General interviewed Mr. Brasky. Subsequently on July 20, 2005, DOI requested that Mr. B~asky I produce all documents related to his alleged private legal practice. Instead of complying with DOl's request, Mr. Brasky terminated his employment on August 16, 2005, without giving prior notice. On September 29, 2005, DOI resorted to the issuance of a non·judicial investigatory~ I subpoena, which requested the production of"[all] documents including, but not limited to, lists, invoices, billing records, cash receipt journals, bank deposit records and time records reflJng, . I identifying or referencing, by name, all persons on whose behalf you provided legal service~ for the period of January 1, 2003 through July 20, 2005." In tum, Mr. Brasky commenced this i I proceeding to quash the subpoena 1 MOTION TO QUASH Through City Charter section 803, DOI maintains the power to investigate ~e activities of any city agency. This broad power explicitly extends to employees and non- 2 [* 4] I employees who conduct business with the city. In order for DOI to effectively perfonn its investigatory duties, DOI may issue non-judicial investigatory subpoenas. ! I Petitioner contends that the subpoena must be quashed on various grounds. First, I i Petitioner submits that DOI lacks the authority to issue a subpoena against a non-City empl~yee. I Further, petitioner argues that the scope of the subpoena evidences DOI' s intent to harass and I intimidate him. Finally, petitioner argues that the subpoena would violate attorney client privilege, as well as various constitutional rights. All of these arguments lack merit. I Petitioner's argument that he is not subject to DOI's subpoena powers becau~e he I no longer works for the city goes against both the plain meaning interpretation of the city chber an,d well developed case law. The authority granted under the City Charter has been interp+d to apply not only to city employees but any individual who possess information related to th~ I subject of an investigation (see. Mattei: of New YQrk City Department of Investigation v. ca.bar Passannante et al., 148 AD2d 191, 104 [1st Dept. 1989]. Therefore, even if petitioner had not ! been employed by the City for over twenty years, petitioner would still be subject to DOI's i I subpoena and investigation, as a person who possess information related to this investigatiof. I Furthermore, the subpoena and investigation relate wholly to petitioner's activities during his I employment with the city. Notwithstanding this clear applicability to petitioner, petitioner continuously fails to give rriuch due credence to the I investigatio~ being solely based on his 1i~ employment. Petitioner, in essence, attempts to create a loophole for all city employ~ to to1d investigatory subpoenas by simply resigning, as he has demonstrated. Such a proposition ,es ! not even merit a comment. Petitioner further posits that the subpoena's breadth is indicative of an intent to harass and intimidate. The Court of Appeals has set forth a three prong test to ensure that 3 [* 5] government agencies, such as DOI, do not issue subpoenas to authorize an ''unlimited and general inquisition" <Matter of Charles A. A'Hearn v. Committee on Unlawful Practice of the Law Qf the New York County !&wyets' Assoc.. 23 NY2d 916, 918 [1969]). To satisfy this {est, there must be a showing of 1) authority, 2) relevance, and 3) some basis for the inquisitorial; action®J. i I As discussed earlier, DOI maintains broad authority to issue subpoenas againkt both city employees and non-city employees who possess information related to the investigation (see. Matter of New York Citv Dept. of Investigation v. Passannante. supra). Petitioner unquestionably falls within this range of authority. Turning to relevance, petition offers no legitimate argument against the relevance of the documents sought. To the extent at DOI is investigating petitioner's alleged private legal practice, the documents sought are completely geared towards that investigation. Finally, with regards to the justification of th subpoena, the Court of Appeals has held that there is no litmus test to determine a subpoenar s I ' I justification, but instead, puts forth a broad analysis approach (Matter of Levin v. Murawski~ 59 NY2d 35, 42 [1983]). In this case, the reliability of the complaint, coupled with the good Jth basis of DOI and the pre-subpoena investigation creates more than adequate grounds to j~ the subpoena. Therefore, the subpoena has met the test set forth by the Court of Appeals. Petitioner further argues that the subpoena violates his attorney client privi1e!e and constitutional rights. However, these arguments also do not have merit. The document sought are " ... lists, invoices, billing records, cash receipt journals, bank deposit records records ... ," which do not divulge the nature or substance of petitioner's legal services. an, time . I I Therefore, while the requested documents may generally relate to petitioner's legal practice~ the I documents are of a collateral nature. It is well established that such collateral documents ar~ not I I 4 [* 6] .. protected by the attorney client privilege~ Matter of Richard D. Priest v. Richard A. ! Hennessy, Jr., 51NY2d62, 69 [1980]). Turning to petitioner's constitutional claims, a violation I of a Fifth Amendment right does not occur until the commencement of a criminal trial, and i I therefore, this is not the proper juncture to discuss any such violation. While petitioner also claims a Fourth and Sixth amendment violation, these claims were not substantiated by petitioner, and therefore, no discussion is warranted. I i I I I I Motion to Compel Disclosure I Petitioner contends that the City Charter requires DOI to tum over tapes and/~r docwnents related to the investigation. However, the language of the City Charter does not I warrant such disclosure to petitioner. The plain language meaning of City Charter section 893(c) ! requires disclosure to only the mayor or collllcil who requested the investigation, not the per~on subject to the investigation, in this case petitioner. Notwithstanding this plain language I meaning, disclosure to petitioner would go directly against the public policy of preserving t ·ese investigations (Robert Blaikie v. Borden Co.. et al., 47 Misc. 2d 180 [1965]). Therefore, disclosure should not be granted. Cross Motion to Compel Compliance I . .. ' 'th Respondent's cross .motion to compeI petitioners compl' 1ance W1 the subp9ena in issue is denied without prejudice. Subpoenas maintain an inherent power to compel I I ! co~liance, and until petitioner avoids the subpoena, intervention is not necessary. Thus J, I i petitioner has not avoided the subpoena per se but invoked his rights to challenge the subpo~na. I Therefore, until petitioner tr1ly avoids the subpoena, which is. no longer in dispute, the sub~oena stands alone to compel compliance. Accordingly it is, 5 [* 7] Ordered and adjudged that petitioner's motion to quash the subpoena issued by respondent is denied; it is further Ordered that 13etitioner's motion to compel production of tapes and/or documents ·reJated to the lnvestigation is denied; it is further Ordered that respondent's cross motion to compel compliance with the subpoena is denied without prejudice. This constitutes the decision and judgment of the court. Dated: \'Nv r.l \~ 289P MAR i 5 zoos· Lottie E WHl<ins 6

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