Opinion
March 28, 1988
Appeal from the Supreme Court, Westchester County (Coppola, J.).
Ordered that the judgment is affirmed, with costs.
The Supreme Court improperly held that a pharmacist is not a professional under the rule enunciated in Matter of Freeman ( 34 N.Y.2d 1). We hold that a pharmacist is immune from prosecution under General Business Law § 340 (see, Matter of Pharmaceutical Socy. v. Abrams, 132 A.D.2d 129). However, the respondent's affidavit discloses that he seeks information concerning anticompetitive practices, inter alia, of pharmacies themselves. The petitioner's membership comprises not only pharmacists but also pharmacies, and it appears from the papers submitted by the petitioner that the latter group includes nonpharmacists. Clearly, then, the petitioner is so closely related to the subject of the investigation into anticompetitive practices in the pharmacy industry that it must comply with the subpoena, which requests documents relevant to alleged antitrust violations of pharmacies, although some of its membership may be immune from prosecution under General Business Law § 340 (see, Matter of Syracuse Coop. Milk Distribs.' Bargaining Agency v Attorney-General of State of N.Y., 13 Misc.2d 26, 29 [Attorney-General may require exempt persons to surrender information regarding nonexempt persons]). Accordingly, it was proper to deny the petitioner's request to quash the subpoena.
The petitioner's bare allegation that specific documents requested in the subpoena are not within its possession or control is insufficient to warrant modification of the subpoena (see, e.g., Fugazy v. Time, Inc., 24 A.D.2d 443). Lawrence, J.P., Rubin, Eiber and Harwood, JJ., concur.