McGrath v. State Board for Professional Medical Conduct

— Appeal by petitioner from-an order of the Supreme Court, Suffolk County (Kelly, J.), dated November 2, 1981, which denied his motion to vacate a subpoena duces tecum served by the respondent, and granted respondent’s cross motion to compel petitioner to comply with the subpoena. Order reversed, on the law, without costs or disbursements, motion granted and cross motion denied. Respondent served a subpoena duces tecum upon petitioner pursuant to section 230 (subd 10, par [k]) of the Public Health Law. It is incumbent upon the issuer of a nonjudicial subpoena duces tecum to come forward with a factual basis which establishes the relevancy of the items sought to the subject matter of the investigation before an individual will be compelled to comply with the subpoena’s mandate (Virag v Hynes, 54 NY2d 437, 442). The affidavit in opposition to the motion to vacate and in support of the cross motion contains no facts whatsoever regarding the nature of petitioner’s alleged professional misconduct. It states only that respondent has received a complaint about petitioner’s using dangerous drugs to treat his patients. The bare statement, without any further description or information, is insufficient to sustain the subpoena (see Matter ofNapatco, Inc. v Lefkowitz, 43 NY2d 884, 885-886; Matter of Murawski fSchachter], 95 Mise 2d 249). Gulotta, J. P., O’Connor, Thompson and Brown, JJ., concur.