| Matter of New York Temporary State Commn. on Lobbying vCrane |
| 2008 NY Slip Op 02535 [49 AD3d 1066] |
| March 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of New York Temporary State Commission onLobbying, Respondent, v James B. Crane II, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (David M. Finkelstein of counsel), forrespondent.
Kavanagh, J. Appeals (1) from an order of the Supreme Court (Teresi, J.), entered April 20,2007 in Albany County, which, among other things, granted petitioner's motion pursuant toCPLR 2308 (b) to compel respondent to comply with a subpoena duces tecum and a subpoena adtestificandum, and (2) from an order of said court, entered July 16, 2007 in Albany County,which denied respondent's motion to renew.
Petitioner[FN*] is charged with the implementation of the Lobbying Act (see Legislative Law [*2]art 1-A), which requires individuals who engage in lobbying toformally register with petitioner and report their expenses, expenditures and compensationtherefrom. Specifically, petitioner "shall be charged with the duty of reviewing all statements andreports required under this article for violations, and it shall be [its] duty, if [it] deem[s] such tobe wilful, to report such determination to the attorney general or other appropriate authority"(Legislative Law § 1-p [b]). In furtherance of that duty, petitioner is authorized to conductrandom audits of statements and reports filed and, pursuant to the act, "[u]pon a determinationthat such reasonable cause exists, . . . may require the production of further books,records or memoranda, subpoena witnesses, compel their attendance and testimony andadminister oaths or affirmations, to the extent the commission determines such actions arenecessary to obtain information relevant and material to investigating such inaccuracies oromissions" (Legislative Law § 1-d [b] [iv]).
Respondent is president and managing partner of a general practice law firm which hasprovided legal services for various lobbyist firms, including Powers, Crane & Company. Duringa random audit of the 2003 Lobbyist Registration and Bimonthly Reports filed with petitioner byPowers, Crane & Company in connection with one of its clients, Duane Reade, Inc., petitionersought further documents from Powers, Crane & Company and its successor firm, Crane &Vacco. Unable to obtain this documentation from either firm, petitioner obtained relevant billingrecords and invoices from Duane Reade. Upon examination of these records, petitioner noted thepresence of certain billing and reporting discrepancies, as well as the existence of "questionablereporting practices" by Powers, Crane & Company. Relying on the information provided,petitioner commenced a formal investigation.
In that regard in July 2006, petitioner issued a nonjudicial subpoena to respondentcompelling his testimony and the production of documents that involved the alleged irregularitiesin the reports on file, as well as possible violations of the Lobbying Act. After respondent,through counsel, advised that he would not comply with the subpoena, petitioner moved toenforce it. Respondent cross-moved to quash the subpoena and sought an order directing that ahearing be held to determine whether petitioner's Executive Director had acted in bad faith inconnection with the initiation of this investigation. Supreme Court granted petitioner's motion toenforce the subpoena, denied respondent's cross motion in its entirety and denied respondent'smotion to renew. These appeals ensued and we affirm.
Where there is "authority, relevancy, and some basis for inquisitorial action" (Matter ofA'Hearn v Committee on Unlawful Practice of Law of N.Y. County Lawyers' Assn., 23NY2d 916, 918 [1969], cert denied 395 US 959 [1969]), a subpoena will be quashed"[o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious orwhere the information sought is utterly irrelevant to any proper inquiry" (Anheuser-Busch,Inc. v Abrams, 71 NY2d 327, 331-332 [1988] [internal quotation marks and citationsomitted]). Because petitioner possesses the legal authority to issue subpoenas in the course ofconducting its investigations (see Legislative Law § 1-d [b] [iv]), and theinformation sought is not utterly irrelevant to that inquiry (see Anheuser-Busch, Inc. vAbrams, 71 NY2d at 332; Matter ofAbbruzzese v New York Temporary State Commn. on Lobbying, 43 AD3d 518, 519[2007]), Supreme Court properly granted petitioner's motion to enforce the subpoena and deniedrespondent's cross motion to quash.[*3]
Nor do we agree that petitioner's decision to referrespondent for a civil penalty hearing renders the issues surrounding the enforcement of thesubpoena moot. "[A]n appeal is not rendered moot if there remain undetermined rights orinterests which the respective parties are entitled to assert" (Matter of Grand Jury Subpoenasfor Locals 17, 135, 257 & 608 of United Bhd. of Carpenters & Joiners of Am., AFL-CIO, 72NY2d 307, 311 [1988], cert denied 488 US 966 [1988]). The requested documents andtestimony have not been provided (compare Matter of Brodsky v Zagata, 235 AD2d 764,766 [1997]) and petitioner's authority to obtain that information remains intact.
Respondent's remaining contentions have been reviewed and found to be without merit.
Mercure, J.P., Spain, Carpinello and Rose, JJ., concur. Ordered that the orders are affirmed,without costs. [See 2007 NY Slip Op 30795(U).]
Footnote *: The Public Employee EthicsReform Act of 2007 merged petitioner and the New York State Ethics Commission to form asingle agency—the Commission on Public Integrity (see Executive Law §94). This new commission has jurisdiction over all matters that were pending before petitioner(see Executive Law § 94, as amended by L 2007, ch 14, § 43, eff Sept. 22,2007).