Opinion
March 23, 1981
In a proceeding pursuant to CPLR article 78 to, inter alia, prohibit the Special Nursing Home Prosecutor from pursuing a Grand Jury investigation of, inter alia, Brunswick Hospital, the appeal is from a judgment of the Supreme Court, Suffolk County, entered February 21, 1980, which dismissed the petition. By order dated June 30, 1980, this court reversed the judgment and granted the petition, without prejudice to the Special Prosecutor's seeking an order of resubmission on the basis of our decision in Matter of McGinley v. Hynes ( 75 A.D.2d 897). (Matter of Brunswick Hosp. Center v. October 1979 Grand Jury, 76 A.D.2d 924.) On November 20, 1980 the Court of Appeals ( 51 N.Y.2d 975) reversed the order of this court and remitted the case to this court for reconsideration in light of that court's reversal of our order in Matter of McGinley v. Hynes ( 51 N.Y.2d 116). Judgment affirmed, without costs or disbursements. In Matter of McGinley v. Hynes (supra) the Court of Appeals held that a writ of prohibition does not lie against a prosecutor who is merely acting in an investigatory, as opposed to a quasi-judicial, capacity. The court ruled that under such circumstances, the appropriate remedy is by way of a traditional motion to quash the subpoena. In view of the fact that the same Grand Jury proceedings are involved here as in McGinley, the petition must be dismissed. We note that petitioner has already made a motion to quash, that the motion was denied, and an appeal is presently pending before this court. Damiani, J.P., Gibbons, Margett and Thompson, JJ., concur.