IN RE: GARNET HEALTH MEDICAL CENTER (2026)

DECISION & ORDER

In a proceeding, inter alia, pursuant to CPLR 2304 to quash a subpoena duces tecum dated February 23, 2024, the petitioner appeals from an order of the Supreme Court, Orange County (David S. Zuckerman, J.), dated May 3, 2024.  The order denied that branch of the petition which was pursuant to CPLR 2304 to quash the subpoena duces tecum, granted that branch of the petition which was pursuant to CPLR 3103 for a protective order only to the extent of limiting the time period covered by the subpoena duces tecum from March 16, 2019, through May 3, 2024, and granted the respondent's motion to compel the petitioner to respond to the subpoena duces tecum to the extent of directing the petitioner to comply with the subpoena duces tecum, as modified, within 30 days of the date of the order.

ORDERED that the order is affirmed, with costs.

In 2023, the New York State Office of the Attorney General (hereinafter the OAG) commenced an investigation into the petitioner's policies and practices regarding toxicology testing for pregnant, perinatal, and newborn patients.  In connection therewith, the OAG served a subpoena duces tecum dated February 23, 2024, on the petitioner seeking the production of records relating, inter alia, to those policies and practices, as well as the medical records of certain patients.  The petitioner commenced this proceeding pursuant to CPLR 2304 to quash the subpoena and pursuant to CPLR 3103 for a protective order preventing the disclosure of confidential patient records.  The respondent moved to compel the petitioner to respond to the subpoena.  In an order dated May 3, 2024, the Supreme Court denied that branch of the petition which was to quash the subpoena, granted that branch of the petition which was for a protective order only to the extent of limiting the time period covered by the subpoena from March 16, 2019, through May 3, 2024, and granted the respondent's motion to compel the petitioner to respond to the subpoena to the extent of directing the petitioner to comply with the subpoena, as modified, within 30 days of the date of the order.  The petitioner appeals.

“The requirements for the issuance of an investigatory subpoena duces tecum are ‘(1) that the issuing agency has authority to engage in the investigation and issue the subpoena, (2) that there is an authentic factual basis to warrant the investigation, and (3) that the evidence sought is reasonably related to the subject of the inquiry’ ” (Matter of Evergreen Assn., Inc. v. Schneiderman, 153 A.D.3d 87, 96, 54 N.Y.S.3d 135, quoting Matter of Abrams v. Thruway Food Mkt. & Shopping Ctr., 147 A.D.2d 143, 146, 541 N.Y.S.2d 856;  see Matter of Fulton Commons Care Ctr., Inc. v. James, 227 A.D.3d 717, 718, 211 N.Y.S.3d 145;  Matter of County of Suffolk v. Kennedy, 211 A.D.3d 937, 939, 180 N.Y.S.3d 585;  Matter of Broadway Stages, Ltd. v. New York State Joint Commn. on Pub. Ethics, 201 A.D.3d 1066, 1067, 161 N.Y.S.3d 449).  “Executive Law § 63(12) authorizes the Attorney General to seek an injunction ‘[w]henever any person shall engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business' ” (Matter of Evergreen Assn., Inc. v. Schneiderman, 153 A.D.3d at 97, 54 N.Y.S.3d 135, quoting Executive Law § 63[12] ).  “In connection with any such application, the attorney general is authorized to take proof and make a determination of the relevant facts and to issue subpoenas in accordance with the civil practice law and rules” (Executive Law § 63[12] ).

“An application to quash a subpoena should be granted [o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry” (Anheuser–Busch, Inc. v. Abrams, 71 N.Y.2d 327, 331–332, 525 N.Y.S.2d 816, 520 N.E.2d 535 [citation and internal quotation marks omitted];  see Matter of Fulton Commons Care Ctr., Inc. v. James, 227 A.D.3d at 718, 211 N.Y.S.3d 145;  Matter of County of Suffolk v. Kennedy, 211 A.D.3d at 939, 180 N.Y.S.3d 585).  “ ‘The person challenging a subpoena bears the burden of demonstrating a lack of authority, relevancy or factual basis for its issuance’ ” (Matter of Fulton Commons Care Ctr., Inc. v. James, 227 A.D.3d at 718, 211 N.Y.S.3d 145, quoting Matter of Hogan v. Cuomo, 67 A.D.3d 1144, 1145, 888 N.Y.S.2d 665;  see Matter of Abrams v. Thruway Food Mkt. & Shopping Ctr., 147 A.D.2d at 148, 541 N.Y.S.2d 856).

“In defending his [or her] inquiry, the Attorney General must show only that the materials sought bear a reasonable relation to the subject matter under investigation and to the public purpose to be achieved” (Matter of Evergreen Assn., Inc. v. Schneiderman, 153 A.D.3d at 98, 54 N.Y.S.3d 135 [internal quotation marks omitted];  see Anheuser–Busch, Inc. v. Abrams, 71 N.Y.2d at 332, 525 N.Y.S.2d 816, 520 N.E.2d 535).  “The information forming the factual basis for the issuance of an investigatory subpoena ‘need not be sufficient to establish fraud or illegality, or even provide probable cause, as long as the futility of the process is not inevitable or obvious' ” (Matter of Evergreen Assn., Inc. v. Schneiderman, 153 A.D.3d at 97, 54 N.Y.S.3d 135, quoting Matter of Hogan v. Cuomo, 67 A.D.3d at 1146, 888 N.Y.S.2d 665;  see Matter of Fulton Commons Care Ctr., Inc. v. James, 227 A.D.3d at 718–719, 211 N.Y.S.3d 145).  “Rather, ‘[a]ll that is required is that the scope of the subpoena and the basis for its issuance be more than isolated or rare complaints ․ lest the powers of investigation ․ become potentially instruments of abuse and harassment’ ” (Matter of Evergreen Assn., Inc. v. Schneiderman, 153 A.D.3d at 97, 54 N.Y.S.3d 135, quoting Myerson v. Lentini Bros. Moving & Stor. Co., 33 N.Y.2d 250, 258, 351 N.Y.S.2d 687, 306 N.E.2d 804;  see Matter of Stevens Imports v. Lack, 52 A.D.2d 928, 383 N.Y.S.2d 408).  “ ‘Moreover, in evaluating the Attorney–General's justification for the issuance of a subpoena, there is a presumption that he [or she] is acting in good faith’ ” (Matter of Evergreen Assn., Inc. v. Schneiderman, 153 A.D.3d at 98, 54 N.Y.S.3d 135, quoting Matter of American Dental Coop. v. Attorney–General of State of N.Y., 127 A.D.2d 274, 280, 514 N.Y.S.2d 228;  see Matter of Fulton Commons Care Ctr., Inc. v. James, 227 A.D.3d at 719, 211 N.Y.S.3d 145).

Here, the petitioner's challenge to the issuance of the subpoena is without merit.  The evidence submitted by the respondent in opposition to the petition and in support of its motion sufficiently demonstrated that the documents sought pursuant to the subpoena were reasonably related to the subject matter of the investigation (see Executive Law §§ 291, 296;  10 NYCRR 405.7;  see also Elaine W. v. Joint Diseases N. Gen. Hosp., Inc., 81 N.Y.2d 211, 597 N.Y.S.2d 617, 613 N.E.2d 523;  Board of Educ. of Union Free School Dist. No. 2, E. Williston, Town of N. Hempstead v. New York State Div. of Human Rights, 35 N.Y.2d 673, 360 N.Y.S.2d 887, 319 N.E.2d 202;  Costin v. Glens Falls Hosp., 103 F.4th 946 [2d Cir.] ), and the petitioner failed to demonstrate that the futility of the process to uncover anything legitimate was inevitable or obvious or that the information sought was utterly irrelevant to any proper inquiry (see Matter of Fulton Commons Care Ctr., Inc. v. James, 227 A.D.3d at 720, 211 N.Y.S.3d 145;  Matter of County of Suffolk v. Kennedy, 211 A.D.3d at 939, 180 N.Y.S.3d 585;  Matter of Plastic Surgery Group, P.C. v. Comptroller of the State of N.Y., 155 A.D.3d 1417, 65 N.Y.S.3d 595, affd 34 N.Y.3d 507, 121 N.Y.S.3d 723, 144 N.E.3d 332;  see also Long Is. Moving & Stor. Assn. v. Lefkowitz, 24 A.D.2d 452, 260 N.Y.S.2d 192).

Contrary to the petitioner's contention, the disclosure of the patients' records is not barred by the Health Insurance Portability and Accountability Act of 1996 (see 42 USC § 1320d et seq.), since, as the Supreme Court correctly determined, under the circumstances, the OAG qualifies as a health oversight agency (see 45 CFR 164.501;  Matter of Plastic Surgery Group, P.C. v. Comptroller of the State of N.Y., 155 A.D.3d at 1420, 65 N.Y.S.3d 595;  People v. Marcus Garvey Nursing Home, Inc., 57 A.D.3d 201, 202, 867 N.Y.S.2d 676).  Furthermore, “the fact that the subpoena requires production of a substantial number of documents does not render it invalid, overbroad, or unduly burdensome,” and “[relevancy], and not quantity, is the test of the validity of a subpoena” (Matter of Evergreen Assn., Inc. v. Schneiderman, 153 A.D.3d at 99, 54 N.Y.S.3d 135 [internal quotation marks omitted];  see Matter of American Dental Coop. v. Attorney–General of State of N.Y., 127 A.D.2d at 282–283, 514 N.Y.S.2d 228).

BARROS, J.P., WAN, MCCORMACK and HOM, JJ., concur.