Opinion
January 2, 1986
Appeal from the Supreme Court, New York County (Stanley S. Ostrau, J.).
Complainant, a former employee of respondent Consolidated Edison, instituted a proceeding before the New York State Division of Human Rights, alleging that his employment was terminated in violation of Executive Law § 298. The Division of Human Rights found probable cause to believe that Dias had been discriminated against on the basis of age, disability, and national origin, and scheduled a formal hearing for January 11, 1984.
Prior to the hearing, Dias served a subpoena duces tecum on Consolidated Edison requiring the production of various documents, inter alia, the personnel records of certain Con Ed employees. Con Ed refused to comply with the subpoena and instead Dias was forced to make this motion in Supreme Court seeking to compel compliance.
We find that the records subpoenaed herein are relevant to the discrimination claims so as to demonstrate the pattern and practice of decision making. As such, the subpoena must be upheld. (Russo v Reader's Digest, 91 Misc.2d 1; see, Matter of La Belle Creole Intl. v Attorney-General of State of N.Y., 10 N.Y.2d 192.) Con Ed's concerns regarding the rights of confidentiality of these employees is provided for by Justice Ostrau's order, which directs prior submission to the Administrative Law Judge to inspect the records consistent with the requirements of confidentiality and to determine admissibility and exclusion of evidence. (Executive Law § 297; see also, Russo v Reader's Digest, supra.)
This subpoena, issued in connection with an administrative hearing, is nonjudicial. (See, CPLR 2302 [a].) Upon a party's failure to comply with a nonjudicial subpoena, CPLR 2308 (b) permits that a motion be made in Supreme Court to compel compliance. As the Practice Commentary succinctly states, in regard to a nonjudicial subpoena "[i]t seems clear enough that no contempt punishment can be sought until compliance has been judicially ordered but not forthcoming." (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2308:6, p 251; see also, 2A Weinstein-Korn-Miller, N Y Civ Prac ¶ 2308.01b.) Accordingly, that portion of the order which punishes Con Ed for contempt must be stricken.
Concur — Murphy, P.J., Kupferman, Ross, Asch and Ellerin, JJ.