Charles H. Greenthall & Co. v. Lefkowitz , 41 A.D.2d 818 ( 1973 )

Order, Supreme Court, New York County, entered on June 14, 1972, quashing and vacating a subpoena duces tecum dated March 14, 1972, issued by the Attorney-General to petitioner, unanimously reversed, on the law, the petition dismissed, and petitioner-respondent directed to comply with the subpoena. Appellant shall recover of respondent $40 costs and disbursements of this appeal. Section 352 of the General Business Law (the Martin Act) grants the Attorney-General the right to issue the questioned subpoena. The documents requested are relevant and material .to an investigation initiated by the Attorney-General in good faith, following a complaint by an attorney representing several tenants of an. apartment house which was being converted to co-operative ownership. The complainant alleged that a declaration of effectiveness of a plan of co-operative organization for premises 3.50 East 61st Street, New York City accepted by respondent was improper in that included in the computation of the required 35% of the tenants were individuals who were neither bona fide tenants nor bona fide purchasers of the co-operative corporate stock. The investigation concerns, therefore, the sale of securities within New York State. The power of the Attorney-General under the Martin Act is exceedingly broad. He has wide discretion in determining when an inquiry is warranted. (See Matter of Attorney-General of State of N. Y. [American Research Council], 10 N Y 2d 108, 111, 113, cert. den. 368 U. S. 947; Matter of La Belle Creole Int. v. Attorney-General of State of N. Y., 10 N Y 2d 192; Matter of Martsdale Canine Cemetery v. Lefkowitz, 37 A D 2d 548, affd. 291 N Y 2d 702.) Acceptance by the Attorney-General for filing of the offering co-operative plan and amendments thereto did not divest him of authority to investigate. (General Business Law, § 352-e, subd. 1, par. [a]; subds. 2, 4.) Furthermore, the court finding that the subject co-operative plan is valid and effective, in private litigation by certain tenants against the sponsor, does not invalidate the subpoena. The Attorney-General not having been a party thereto, nor having had notice thereof, he cannot be collaterally estopped nor subject to res judicata. Petitioner has failed to establish that the issuance of the subpoena was arbitrary or capricious; nor is there a showing of abuse of the reasonable discretion required of the Attorney-General. Concur ■— Stevens, P. J., Markewich, Nunez, Steuer and Capozzoli, JJ.