Summary
In Seligson, the Attorney-General had the power to authorize disclosure and the disclosure was made to one party in a civil action, but not to the adversaries.
Summary of this case from Sittniewski v. DeckerOpinion
May 11, 1971
Order, Special Term, Supreme Court, New York County, entered on November 24, 1970, directing the issuance of a subpoena duces tecum, ordering the Attorney-General of the State of New York to produce for inspection and copying transcripts of prior statements, affirmed, without costs and without disbursements. The opinion of Special Term adequately explicates the premises of the disposition which we affirm. In affirming, we derogate in no way from the undisputed right and power of the Attorney-General to hold as confidential evidence collected by him in a Martin Act investigation, if he so chooses. But in the instant proceeding, he (the Attorney-General) has already made a disclosure of information to one of the parties in what now is a civil litigation of some magnitude before our courts. We deem that fundamental fairness and even-handed justice require that, revelations having been made to the plaintiff, the scales be balanced and the same information be made available to the adversary parties in the present litigation, if proper application be, as it is herein, made. Otherwise, the unilateral disclosure is vulnerable to the conclusion of unacceptably arbitrary conduct on the part of a public official, which could well bring us within a constitutional issue, involving equal protection of the laws. This need not be determined on this record, which permits a disposition on the basis of statutory construction precluding unconscionably selective disclosure. (See Matter of Peters v. New York City Housing Auth., 307 N.Y. 519, 527.) The party to whom the one-sided disclosure was made herein, was not another public agency nor an investigatory body, nor is any claim made that any current investigation would be prejudiced by the transcripts being made available to other parties in the subject litigation, or that the public interest would in any way be compromised. We cannot accept the views of the dissent as to the availability of CPLR 3101 (subd. [d]) as a vehicle for procural of the transcripts sought. The examination accorded plaintiff by the Attorney-General was upon the express restriction that plaintiff would not make available any disclosures to any party. Nor, do we regard People v. Bunge Corp. ( 25 N.Y.2d 91) as a precluding precedent. It is manifest that the precise point before us was not passed on by the court or even raised for specific review in that appeal.
It is clear that the Court of Appeals in People v. Bunge Corp. ( 25 N.Y.2d 91) held that the evidence collected by the Attorney-General is confidential, and that subdivision 5 of section 352 Gen. Bus. of the General Business Law prohibits disclosure of information obtained in a Martin Act investigation, except as directed by the Attorney-General. The defendant-third-party plaintiff-respondent, the Fidelity and Casualty Co. of New York, by motion for an order pursuant to CPLR 2307 (subd. [a]), seeks a subpoena duces tecum directing the Attorney-General to produce certain transcripts which would come within the afore-mentioned ruling in People v. Bunge Corp. The court at Special Term granted the application relying, in a thoughtful opinion, upon the ground that the Attorney-General had already pierced the confidential nature of the information by making it available to the plaintiff trustee in bankruptcy for the purposes of this action, based on the salad oil scandal. We do not believe that the Attorney-General should be barred from the possibility of selective disclosure of the information in his files, unless absolute fairness requires otherwise. The court at Special Term granted the application for disclosure against the Attorney-General pursuant to CPLR 2307, so that the parties in their own litigation would be on equal footing. However, CPLR 3101 (subd. [d]) has ample provision for disclosure of material prepared for litigation and, if "withholding it will result in injustice or undue hardship". By proceeding in this fashion under the normal disclosure provisions, the Fidelity and Casualty Co. of New York can obtain from the plaintiff trustee in bankruptcy whatever writings, such as the transcripts of testimony allegedly acquired from the Attorney-General from his files on investigation under the Martin Act. With this means of obtaining information in the ordinary course of litigation, it is unnecessary to require the Attorney-General to bare his files in view of his determination in the sound exercise of discretion not so to do. We would reverse and deny the motion, without costs.