Opinion
15429 Index No. 451825/19 Case No. 2021–00330
03-03-2022
In the Matter of The PEOPLE of the State of New York BY Letitia JAMES, Attorney General of the State of New York, Petitioner–Respondent, v. Ackerman MCQUEEN, Respondent, National Rifle Association of America, Respondent–Appellant.
Brewer, Attorneys & Counselors, New York (Sarah B. Rogers of counsel), for appellant. Letitia James, Attorney General, New York (Matthew William Grieco of counsel), for State respondent.
Brewer, Attorneys & Counselors, New York (Sarah B. Rogers of counsel), for appellant.
Letitia James, Attorney General, New York (Matthew William Grieco of counsel), for State respondent.
Manzanet–Daniels, J.P., Mazzarelli, Singh, Scarpulla, Higgitt, JJ.
Appeal from order, Supreme Court, New York County (Melissa A. Crane, J.), entered November 10, 2020, which denied respondent National Rifle Association of America's (the NRA) motion for leave to renew or reargue the petition to compel full compliance with a nonjudicial subpoena duces tecum issued to respondent public relations contractor Ackerman McQueen (AMQ), unanimously dismissed, without costs, as moot.
The representation in the record by petitioner that full compliance with the subpoena was achieved prior to the entry of the order on appeal is uncontested (see Matter of Lefkowitz v. Kershenberg, 56 A.D.2d 555, 555, 391 N.Y.S.2d 984 [1st Dept. 1977] ), and the NRA failed to seek a preliminary stay pending determination of its motion or a stay pending appeal (see Matter of Henry St. Invs., Ltd. v. Brennan, 153 A.D.3d 1402, 1403, 60 N.Y.S.3d 686 [2d Dept. 2017] ). The NRA may raise its privilege issues in the currently pending enforcement proceeding brought by petitioner (see Matter of Roadway Express, Inc. v. Commissioner of N.Y. State Dept. of Labor, 66 N.Y.2d 742, 497 N.Y.S.2d 358, 488 N.E.2d 104 [1985] ). The issue of whether the target of an investigation is entitled to approve disclosures by a third party to law enforcement is not novel (see S.E.C. v. Jerry T. O'Brien, Inc., 467 U.S. 735, 743, 104 S.Ct. 2720, 81 L.Ed.2d 615 [1984] ; compare Fomby–Denson v. Department of Army, 247 F.3d 1366 [Fed Cir.2001] [contracts barring reports to law enforcement contrary to public policy]).