In the Matter of Roadway Express, Inc., Appellant,
v.
Commissioner of the New York State Department of Labor, Respondent.
Court of Appeals of the State of New York.
Argued October 7, 1985. Decided October 24, 1985.Stuart A. Summit, Richard A. Wilsker, Randy L. Levine and Barbara Hoey for appellant.
Robert Abrams, Attorney-General (Howard B. Friedland, Robert Hermann, Carlin Meyer and Jane Lauer Barker of counsel), for respondent.
Chief Judge WACHTLER and Judges JASEN, MEYER, KAYE, ALEXANDER and TITONE concur; Judge SIMONS taking no part.
*744MEMORANDUM.
The appeal should be dismissed.
In this proceeding to quash a subpoena it is conceded that the records were surrendered in accordance with the subpoena when the Appellate Division refused to grant a stay pending the appeal to that court. There is no basis for this court to exercise its discretion to retain the appeal despite the mootness (cf. Matter of Barbara C., 64 N.Y.2d 866) since there is no showing that the issue is the type likely to evade review. Indeed, a proceeding relating to the Commissioner's subsequent efforts to enforce the statute at issue is still pending in the lower courts.
Appeal dismissed, without costs, in a memorandum.