State v. Mobil Oil Corp.

McGivern, J. P. (dissenting).

I believe the objection is well taken.

Indeed, the very fact that “ the investigation is very much alive and is continuing ”, a:s acknowledged in the majority opinion, is all the more reason for affording defendant some relief. The fact that the Donnelly Act inquisition parallels a similar civil action, between the same parties, based on the same facts, raises the questions of public policy, due process and equal protection as they affect the defendant in the civil action.

Nor is the law in this area settled. The last expression on the specific question at issue seems to be in People v. Anaconda Wire Co. (45 Misc 2d 151, affd. 23 A D 2d 823; app. dsmd. 16 N Y 2d 871 [1965]). Therein, the court at Special Term said (p. 153): “To permit the Attorney-General to utilize the subpoena powers conferred upon him by section 343 for the sole purpose of aiding him in the prosecution of the instant action would be grossly unfair and would deprive the defendants of their right to be present at any pretrial examination or to cross-examine or to obtain a copy of the testimony of the witness. It seems clear to the court that although the subpoena powers pursuant to section 343 do not ‘ abate or terminate by reason of any action or proceeding brought by the attorney general under this article ’, •the provisions of that section are applicable only in aid of an investigation and not to aid the court in making its determina*372tion and therefore, do not apply to the subpoenas attacked herein and the motion to vacate is granted.”

In the instant case, counsel for the Attorney-General unabashedly admitted on argument that the nature of the action against Mobil was civil in category. I cannot see fundamental fairness in permitting section 343 of the General Business Law to be applied in such a manner that the State may obtain information against a subject in a civil action on an. ex parte basis and in effect achieve uninhibited discovery in- circumvention of the normal disclosure processes which all other parties must pursue in accordance with the CPLR.

Nor do I see Matter of Hoyt v. Attorney-General (258 N. Y. 569) as antithetical to this view. In that appeal the Court of Appeals rendered no opinion, and the Reporter’s note is consistent with a conclusion that the court therein merely held that the issuance of an investigatory subpoena under the Martin Act (General Business Law, art. 23-A) was not invalid because of the commencement of an action. That is a far cry from the indication, patently manifested here, and not denied, that the subject subpoena is seeking information directly related to a pending civil action. In my judgment, this is a transgression of due process and the equal protection of the law, and leads into “ forbidden pastures ”. That there are limitations on the . use of such a subpoena against a civil litigant is a view which has been recognized before, and never rejected by later cases. (Matter of Kenney, 129 Misc. 708, 710 [1927].) Cited with approval: Carlisle v. Bennett (268 N. Y. 212, 218); see, also, Ann. 87 A. L. R. 142-143.

At the very least, the scope of the subpoena should be narrowed so as to exclude matters relevant to the civil litigation between the two parties; furthermore, an accommodation should be made, permitting counsel for the defendant to be present at any examination affecting the civil litigation, with right of cross-examination.

Nunez and Steuer, JJ., concur with Capozzoli, J.; McGivern, J. P., dissents in an opinion in which Murphy, J., concurs.

Order, Supreme Court, New York County, entered on November 9,1972, affirmed, without costs and without disbursements.