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McGrath v. State Board for Prof. Med. Conduct

Appellate Division of the Supreme Court of New York, Second Department
Jun 1, 1982
88 A.D.2d 906 (N.Y. App. Div. 1982)

Opinion

June 1, 1982


Appeal by petitioner from an order of the Supreme Court, Suffolk County (Kelly, J.), dated November 2, 1981, which denied his motion to vacate a subpoena duces tecum served by the respondent, and granted respondent's cross motion to compel petitioner to comply with the subpoena. Order reversed, on the law, without costs or disbursements, motion granted and cross motion denied. Respondent served a subpoena duces tecum upon petitioner pursuant to section 230 (subd 10, par [k]) of the Public Health Law. It is incumbent upon the issuer of a nonjudicial subpoena duces tecum to come forward with a factual basis which establishes the relevancy of the items sought to the subject matter of the investigation before an individual will be compelled to comply with the subpoena's mandate ( Virag v. Hynes, 54 N.Y.2d 437, 442). The affidavit in opposition to the motion to vacate and in support of the cross motion contains no facts whatsoever regarding the nature of petitioner's alleged professional misconduct. It states only that respondent has received a complaint about petitioner's using dangerous drugs to treat his patients. The bare statement, without any further description or information, is insufficient to sustain the subpoena (see Matter of Napatco, Inc. v. Lefkowitz, 43 N.Y.2d 884, 885-886; Matter of Murawski [ Schachter], 95 Misc.2d 249). Gulotta, J.P., O'Connor, Thompson and Brown, JJ., concur.


Summaries of

McGrath v. State Board for Prof. Med. Conduct

Appellate Division of the Supreme Court of New York, Second Department
Jun 1, 1982
88 A.D.2d 906 (N.Y. App. Div. 1982)
Case details for

McGrath v. State Board for Prof. Med. Conduct

Case Details

Full title:EDMUND J. McGRATH, Appellant, v. STATE BOARD FOR PROFESSIONAL MEDICAL…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 1, 1982

Citations

88 A.D.2d 906 (N.Y. App. Div. 1982)

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