Opinion
January 18, 1982
In an action to recover damages for malicious prosecution, plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Leviss, J.), dated December 23, 1980, as granted the People's motion to quash a subpoena duces tecum requiring the District Attorney of Queens County to produce the minutes of the Grand Jury of the County of Queens, impaneled in the Supreme Court and held in and for the County of Queens for the regular February, 1974 Term, in criminal proceedings entitled The People of the State of New York v. Frank Sonnenberg, Chester Eagleston, Gilbert Etheridge and Arnold Reekstin (Criminal Court Docket Nos. Q326920, 326921, 326922 and 326923). Order modified by adding to the decretal paragraph, after the word "granted", the words "except for the testimony of witness William Schmitt." As so modified, order affirmed insofar as appealed from, without costs or disbursements. The District Attorney shall produce the said testimony within 20 days after service upon him of a copy of the order to be made hereon, with notice of entry. The Grand Jury testimony of Detective William Schmitt was already made available to plaintiffs during the trial of the above-entitled criminal proceedings, pursuant to People v. Rosario ( 9 N.Y.2d 286). In view of this fact, and since plaintiffs cannot otherwise sustain their burden of proof in the instant action, in the interest of justice, the People should produce the minutes of Schmitt's testimony (cf. Albert v. Zahner's Sales Co., 51 A.D.2d 541). Mollen, P.J., Lazer, Cohalan and Thompson, JJ., concur.