Kuriansky v. Weinberg

Order (mandate) of the Supreme Court, New York County (Harold Rothwax, J.), entered February 13, 1986, which adjudged the respondent-appellant in contempt of court and sentenced him to 30 days’ imprisonment, reversed, on the law and the facts and in the exercise of discretion, without costs, and the matter remanded for a hearing. This proceeding arises out of an investigation of Medicaid fraud in New York County, in which the Medicaid special prosecutor, the petitioner-respondent herein, issued a subpoena duces tecum for evaluation and treatment records of patients to the respondent-appellant, a physician. Initially, the physician, through counsel, raised various dilatory defenses, among others that the subpoena was burdensome and in violation of the physician-patient relationship. The Judge presiding denied the motion to quash and directed compliance. Thereafter, counsel for the physician contended that the physican did not have possession, custody or control of the subpoenaed documents and presented instead 3,800 pages of invoices to patients. The invoices did not have the substantial analysis of each patient which the subpoena sought or the treatment records. The Judge presiding was, with good cause, perturbed by the dissembling which had taken place when the contention of lack of possession should have been raised initially. (See, McPhaul v United States, 364 US 372.) However, it may be that the physician’s language difficulty in communicating with counsel was responsible. If in reality, respondent-appellant did not have possession and could not obtain possession, it would not seem to be in order to have him incarcerated. Accordingly, we remand for a hearing on the question of the physician’s knowledge as to actual location of the records and as to possession, custody or control thereof. Concur — Kupferman, J. P., Carro, Rosenberger and Ellerin, JJ.