IN RE: GRAND JURY SUBPOENA DUCES TECUM

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Supreme Court, Appellate Division, First Department, New York.

IN RE: GRAND JURY SUBPOENA DUCES TECUM, etc. The People of the State of New York, Respondent, v. The New York City Health and Hospitals Corporation, Appellant. Healthcare Association of New York State, Island Peer Review Organization and Medical Society of the State of New York, Amici Curiae.

Decided: May 23, 2000

WILLIAMS, J.P., ELLERIN, LERNER, ANDRIAS and FRIEDMAN, JJ. Gina Mignola, for Respondent. Elizabeth S. Natrella, for Appellant. Anoush Koroghlian Scott, Mark K. Hsu, Jay G. Safer, for Amici Curiae.

Order, Supreme Court, New York County (Brenda Soloff, J.), entered on or about September 3, 1999, which denied appellant New York City Health and Hospitals Corporation's (HHC's) motion to quash portions of three Grand Jury subpoenas duces tecum, and granted respondent People of the State of New York's motion to compel compliance, unanimously modified, on the law, to grant the motion to quash with respect to the reports prepared by Amicus Curiae Island Peer Review Organization, and otherwise affirmed, without costs.

 Since HHC is not a “hospital” as defined in Public Health Law 2801(1), its quality assurance and peer review records are not privileged under Public Health Law article 28, which by its terms applies only to hospitals (cf., Matter of Application to Quash a Grand Jury Subpoena, 239 A.D.2d 412, 657 N.Y.S.2d 747 ).   Nor does it avail HHC to assert the quality assurance privilege contained in Education Law § 6527(3), which protects against disclosure only in civil proceedings (see, People v. Okereke, 117 Misc.2d 494, 458 N.Y.S.2d 500;  see also, Matter of St. Elizabeth's Hosp. v. State Bd. of Professional Med. Conduct, 174 A.D.2d 225, 579 N.Y.S.2d 457;  cf., Katherine F. v. State of New York, 257 A.D.2d 539, 684 N.Y.S.2d 243, affd. 94 N.Y.2d 200, 702 N.Y.S.2d 231, 723 N.E.2d 1016), or the public interest privilege, the People having demonstrated that the information subpoenaed is necessary to the investigation and is not duplicative of information already provided (see, Matter of World Trade Ctr. Bombing Litig., 93 N.Y.2d 1, 8-9, 686 N.Y.S.2d 743, 709 N.E.2d 452).   HHC's request for a protective order was also properly denied as unnecessary in view of the secret nature of Grand Jury proceedings (see, People v. Okereke, supra ).   However, the documents prepared by amicus curiae Island Peer Review Organization, an outside, independent professional standards review firm, retained to make recommendations to the hospital as to patient care and administration, are privileged under Education Law § 6527(3) (see, Zion v. New York Hosp., 183 A.D.2d 386, 590 N.Y.S.2d 188, appeal withdrawn 81 N.Y.2d 881, 597 N.Y.S.2d 941, 613 N.E.2d 973;  Sonsini v. Memorial Hosp. for Cancer & Diseases, 262 A.D.2d 185, 693 N.Y.S.2d 17), and we modify accordingly.

MEMORANDUM DECISION.