[*1]
| Doe v Cuomo |
| 2009 NY Slip Op 50642(U) [23 Misc 3d 1109(A)] |
| Decided on March 16, 2009 |
| Supreme Court, Rockland County |
| Weiner, J. |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Supreme Court, Rockland County
John Doe, Petitioner,
against
Andrew M. Cuomo, Attorney General of the State of New York,
Respondent.
|
10683/08
Feerick Lynch MacCartney PLLC
Attorneys for Petitioner
Andrew M. Cuomo, Esq.
Attorney General of the State of New York
by: Mina Kim Esq.
Respondent
Alfred Weiner, J.
Upon the foregoing papers, it is ORDERED that these applications are
disposed of as follows:
While investigating violations of labor and civil rights laws, Respondent Attorney
General issued a subpoena to Petitioner to testify and to provide certain documents. After
intervention by Petitioner's counsel, Respondent offered Petitioner immunity for his deposition
and confirmed the offer by letter dated February 1, 2008 stating,
"I write to follow up on our conversation and confirm that this office has
agreed, upon request, to extend immunity to _______for his deposition in the above-referenced
investigation being conducted by the Office of the NYS Attorney General. The immunity covers
only Mr. ______'s testimony during his deposition, on a date to be scheduled, and provides
immunity from criminal prosecution by the Office of the NYS Attorney General. This agreement
does not provide immunity from the civil investigation, any civil proceeding, or any judgments,
orders, fines, penalties or other consequences resulting from the civil [*2]investigation or any civil
proceeding."
Believing the immunity offer was in effect,
Petitioner accepted the offer on May 14, 2008 by providing various documents and making
himself available for the deposition. On August 6, 2008 Respondent sent an agreement to
Petitioner's attorney for Petitioner's signature. According to Petitioner, this agreement
substantially modified the terms of the immunity originally offered, to his client's detriment. As a
consequence, Petitioner now seeks a writ of prohibition pursuant to Article 78 of the Civil
Practice Law and Rules restraining and enjoining the Attorney General from proceeding with his
investigation and/or requiring him to honor the original immunity agreement.
Petitioner contends that the Attorney General originally provided Petitioner with two
benefits (1) "use immunity" as to his deposition testimony and (2) blanket "transactional
immunity" from any criminal prosecution regardless of whether or not based upon his deposition
testimony. Petitioner also claims that he partially performed the agreement when he produced
documents, including some that were privileged.
The Assistant Attorney General in this matter on behalf of Respondent, submitted
opposition to the application and contends that the August 6, 2008 agreement was necessary
because she "...believed there should be a more detailed written statement of our
understanding before the scheduled deposition took place."[FN1]
Respondent Attorney General contends that the remedy of a writ of prohibition is an
extraordinary remedy' and not available to Petitioner; that such a writ is permissible only when a
respondent acts in the absence of any authority. In addition, Respondent contends that the
February 1, 2008 letter unambiguously limited Respondent's offer of immunity.
A cooperation and immunity agreement is in the nature of a contract and subject to
contract law standards. U.S. v. Fulbright, 804 F.2d 847, 5th Cir., 1986. The language of
the contract is to be read as a whole and given a reasonable interpretation. U.S. v.
Brown, 801 F.2d 352, 8th Cir. 1986.
Here, the Court finds that Petitioner's interpretation of the February 1, 2008 letter is
overly broad and unduly emphasizes the phrase regarding the grant of immunity from criminal
prosecution. In viewing the entire letter as a whole and in context, the Court finds that
Respondent only offered immunity from criminal prosecution that arose from the deposition
testimony itself.
Accordingly, Petitioner is not entitled to the relief sought and the petition is
dismissed. [*3]Respondent's Cross-Motion to Compel Petitioner's
Compliance with Subpoena is granted. Respondent shall appear and testify at the Office of the
New York State Attorney General, Labor Bureau, 120 Broadway, 26th Floor, New York, New
York 10271 on a date and time to be mutually agreed upon, but in no event later than forty-five
(45) days from the date hereof.
Dated:New City, New York
March 16, 2009
ENTER:
__________________________
HON. ALFRED J. WEINER
Justice of the Supreme Court
To:
Feerick Lynch MacCartney PLLC
Attorneys for Petitioner
Andrew M. Cuomo, Esq.
Attorney General of the State of New York
by: Mina Kim Esq.
Respondent
Footnotes
Footnote 1: Kim Affirmation, November 20,
2008, par. 12.