Anonymous v. Axelrod

Silverman, J. This action is brought in the form of an action for declaratory judgment and for an injunction. But, the relief sought is essentially to quash a subpoena duces tecum. There is, however, an established form of procedure for such relief, a motion to quash the subpoena under CPLR 2304. And indeed, plaintiff’s motion sought relief under that section as well as CPLR 6311 and 6312, which relate to preliminary injunctions. Declaratory judgment is a discretionary remedy. “The discretion must be exercised judicially and with care * * * It is usually unnecessary where a full and adequate remedy is already provided by another well-known form of action * * * Where there is no necessity for resorting to the declaratory judgment it should not be employed.” (James v Alderton Dock Yards, 256 NY 298, 305.) The procedure under CPLR 2304 is a full and adequate remedy, and accordingly, an action for declaratory judgment will not lie. By the same token, relief by way of injunction will not lie, there being an adequate remedy at law. The motion was also made under CPLR 2304 which governs applications to quash or modify subpoenas. That section provides, however: “If the subpoena is not returnable in a court, a request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made in the supreme court.” It is clear that no request was made to the agency that issued the subpoena to withdraw or modify it before this application in the Supreme Court. This objection was explicitly raised in defendants’ answer and 790 the fact that there was no such request is impliedly conceded in the reply affidavit submitted on behalf of plaintiff. It follows that the motion to quash the subpoena should have been denied, at least on this ground. Necessity for such a prior request is not obviated by casting the action in the improper form of an action for a declaratory judgment or for an injunction. Such a request may be particularly appropriate where, as here, plaintiff contends that the complaint concerning his conduct is a vindictive one arising out of a family dispute, and thus perhaps not a proper subject for extensive investigation by the State Board for Professional Medical Conduct. We do not pass on the other issues in the case. But this is not to be taken as agreement on our part, that the State Board for Professional Medical Conduct has no power to issue subpoenas to a physician in connection with an investigation of his conduct. (See Public Health Law, § 230, subd 10, pars [a], [k], [l].) Nor is it to be taken as agreement on our part that the answer sufficiently establishes an adequate factual basis for the issuance of the subpoena or an adequate showing that there is an investigation in progress, or that the committee on professional conduct has specifically approved the issuance of this subpoena.