Grandview Dairy, Inc. v. Lefkowitz

Appeal from judgment, Supreme Court, New York County, entered May 16, 1979, dismissed, without costs or disbursements, said judgment having been superseded by subsequent order entered November 26, 1979. Order, Supreme Court, New York County, entered November 26, 1979, which granted petitioner’s motion to reargue, and upon reargument, modified subpoena duces tecum to the extent of limiting the time period of the subpoena to a period beginning January 1, 1974, modified, on the law, without costs or disbursements, to the extent hereinafter indicated: Question No. 4 shall read, in part, "Identify all contracts, agreements, or arrangements, including those relating to payment, whether formal or informal * * Question No. 5 shall read, in part, "Identify each Grandview executive, whose duties have included * * Question No. 6 shall read "State whether Carvel Corporation receives any compensation, consideration, discount or economic advantage, whether tangible or intangible, from your company for doing business with your company, and which your company does not give to purchasers of its ice cream mix other than Carvel;” Question No. 8 is vacated; Question No. 9 shall read, "Identify all documents suggesting, stating or determining the prices charged by your company for manufacturing mix for Carvel corporation;” and except, as thus modified, the order is affirmed. We find that, as originally issued, the subpoena was overly broad and burdensome to the extent indicated. Our dissenting brother would quash the subpoena in its entirety, in part, because of the length and 777 complexity of the instructions and definitions. Concededly, having to wade through seven pages of preliminary instructions is enough to vex the most compliant of those attempting to answer the combination subpoena-interrogatories. We are of the view, however, that such instructions are essential if interrogatories are to serve as a useful tool for gathering evidence against a corporate entity. Without the instructions the interrogatories might well be stripped of all efficacy through evasiveness and nonresponsiveness by the corporate officer answering the interrogatories. Although the Attorney-General is seeking almost identical disclosure in a pending civil action which he has brought against petitioner, he should not be barred in his efforts to obtain the same information for possible use against others and even possible criminal prosecution. The authority of the Attorney-General to continue his investigation following the commencement of an antitrust action is well established. (State of New York v Mobil Oil Corp., 40 AD2d 369, affd 33 NY2d 627; Long Is. Moving & Stor. Assn. v Lefkowitz, 24 AD2d 452, mot for lv to app den 17 NY2d 419, app dsmd 17 NY2d 918; General Business Law, § 343.) The instant investigation involves the business activities of Carvel Corporation, and its suppliers, of which petitioner is but one. The Attorney-General is seeking to determine if Carvel’s suppliers and others have engaged in illegal restraints of trade with Carvel, and if so, whether proceedings should be brought against them. Statutes of Limitation for criminal and civil actions under the Donnelly Act vary, and the possibility looms that the criminal statute might run before disclosure in the civil action is completed. In any event, as noted above, a party is not immune from the Attorney-General’s subpoena merely because simultaneously it is involved in civil litigation with the State. Concur—Fein, J. P., Sullivan and Carro, JJ.