One lower New York court has held the required record exception inapplicable to patients' medical records subpoenaed from a practitioner charged with sexually abusing his patients, People v. Cohen, 98 Misc.2d 874, 876, 414 N.Y.S.2d 642, 643 (Dist.Ct. 1979), although a limited production was compelled on the ground that the patients' right of access to the records prevailed over the practitioner's Fifth Amendment claim. In several cases involving nursing home abuses, New York courts have found the exception applicable to nursing home patients' medical records as well as financial records, but have refused to compel the production of the former on the basis of the physician-patient privilege, Lewis v. Hynes, 82 Misc.2d 256, 261-63, 368 N.Y.S.2d 738, 744-45 (Sup.Ct. 1975), followed in Kent Nursing Home v. Office of the Special State Prosecutor for Health Social Services, 49 A.D.2d 616, 370 N.Y.S.2d 669 (2d Dept.) (compelling production only of nonmedical records required under 10 (N.Y.C.R.R. 730.6), aff'd sub nom. Sigety v. Hynes, 38 N.Y.2d 260, 379 N.Y.S.2d 724, 342 N.E.2d 518 (1975).
Thus, injured plaintiffs suing defendants insured by a risk retention agency are particularly prejudiced by the enforcement of such stays. Imposing a stay, of potentially indefinite duration, in this case would undermine the State's important public policy of protecting victims of negligence in nursing homes and allowing them economic redress (seeMatter of Kent Nursing Home v. Office of Special State Prosecutor for Health & Social Servs. , 49 A.D.2d 616, 370 N.Y.S.2d 669 [1975], affd sub nom.Matter of Sigety v. Hynes , 38 N.Y.2d 260, 379 N.Y.S.2d 724, 342 N.E.2d 518 [1975], cert denied 425 U.S. 974, 96 S.Ct. 2174, 48 L.Ed.2d 798 [1976] ).For these reasons, the doctrine of comity also does not require enforcement of the Montana order ( J. Zeevi & Sons v. Grindlays Bank [Uganda] , 37 N.Y.2d 220, 228, 371 N.Y.S.2d 892, 333 N.E.2d 168 [1975], cert denied 423 U.S. 866, 96 S.Ct. 126, 46 L.Ed.2d 95 [1975] ["where there is a conflict between our public policy and application of comity, our own sense of justice and equity as embodied in our public policy must prevail"] ).
The St. Lawrence County Grand Jury has issued two subpoenas requiring petitioner Alton Barlow to bring before it certain records of the Moongate, Canton and Cedars Nursing Homes. Barlow owned the Canton home until it closed in 1973, and presently owns the Moongate and Cedars homes. He seeks to quash the subpoenas on the ground they violate his privilege against self incrimination. The documents in question were required to be kept (Public Health Law, § 2803-b; 10 NYCRR 730.6), so that the undeniable public interest in the operation of nursing homes might be guarded. Production of such documents may be compelled without violating Barlow's privilege against self incrimination (Matter of Kent Nursing Home v. Office of Special State Prosecutor for Health Social Servs., 49 A.D.2d 616, affd sub nom. Matter of Sigety v Hynes, 38 N.Y.2d 260; cf. Shapiro v United States, 335 U.S. 1). Petitioner would distinguish the Matter of Kent case (supra) as not involving a Grand Jury subpoena. The distinction is untenable since the danger of self incrimination is no less in cases such as Matter of Kent where the Special Prosecutor issued the subpoena under his own authority.
Judgment affirmed, without costs or disbursements. The books and records described in the subpoena are required to be kept by petitioner in compliance with sections 2803 Pub. Health and 2803-b Pub. Health of the Public Health Law and 10 NYCRR 730.6. Petitioner cannot avoid production thereof on the theory that their contents tend to incriminate her (see Matter of Kent Nursing Home v Office of Special State Prosecutor for Health Social Servs., 49 A.D.2d 616, affd 38 N.Y.2d 260). Petitioner must make the required records available for public inspection by duly authorized public officials whether she operates the nursing home as a partnership or as the sole proprietor (see Shapiro v United States, 335 U.S. 1; Lap v Office of Special State Prosecutor for Health Social Servs., NYLJ, May 28, 1976, p 10, col 4). We have examined appellant's other contentions and find them to be without merit.
On his appeal from Special Term's denial of his motion to quash, he argues solely that CPLR 310 and 318 require that a partner or an agent designated by the partnership, be served in order to gain jurisdiction over the home and to compel the production of its books and records. A nursing home is not a family business, but falls within the definition of a hospital (Matter of Kent Nursing Home v Office of Special State Prosecutor for Health Social Servs., 49 A.D.2d 616, affd 38 N.Y.2d 260, 268). Petitioner's argument on appeal ignores the fact that the subpoena duces tecum calls for the production of records before the Grand Jury.
Appeal by petitioners, as limited by their brief, from so much of an order of the Supreme Court, Queens County, dated July 23, 1975, as, upon reargument, adhered to a prior determination of the same court, dated May 15, 1975, which, inter alia, denied their motion to quash a subpoena. Order affirmed insofar as appealed from, with $50 costs and disbursements (Matter of Kent Nursing Home v Office of Special State Prosecutor for Health Social Servs., 49 A.D.2d 616, affd 37 N.Y.2d 802. Rabin, Acting P.J., Latham, Margett, Christ and Shapiro, JJ., concur. [ 82 Misc.2d 256.]
Notwithstanding the many cases which hold a corporation to be a person, the Fifth Amendment has no application to collective entities (Bellis v United States, 417 U.S. 85, and cases cited therein). (See, also, Matter of Kent Nursing Home v Office of Special State Prosecutor for Health Social Servs., 49 A.D.2d 616, affd 38 N.Y.2d 260; Matter of Sigety v Hynes, 38 N.Y.2d 260.) The motion to dismiss the indictment is therefore denied.