This special proceeding pursuant to CPLR Article 4 was commenced on October 31, 2024 by the filing of a Petition, with exhibits, together with Notice of Petition (see NYSCEF Doc No. 1-18 and 21-27). The Petition seeks to quash certain subpoenas issued by Respondent New York State Attorney General Letitia James (hereinafter "Respondent") to Petitioners Blue Line Sports LLC and Woods and Waters (hereinafter "Petitioners"). More specifically, the Petition seeks an order: (1) quashing the subpoenas at issue dated June 26, 2024; (2) in the alternative, staying the proceeding pending final resolution of ongoing federal civil rights litigation; (3) in the alternative, permitting Petitioners to amend their application to include constitutional challenges and permitting removal of same to a federal court for further consideration, or converting the special proceeding into a plenary state court action; (4) of protection pursuant to CPLR 3103; (5) awarding costs and fees; and (6) such other and further relief as the Court deems just.

Petitioners sought substantially similar relief in previous related litigation (Index: E2024-622) instituted on September 6, 2024. By Decision and Order dated October 16, 2024, the Court dismissed the proceeding due to improper commencement and the resultant lack of personal jurisdiction. The dismissal was without prejudice and Petitioners now seek the relief previously requested by way of the instant Petition. To the extent the prior proceeding and the Court's prior Decision and Order are germane to the instant proceeding — and the Court's discussion of CPLR 2304 and motions to quash remain relevant, as will be seen — the reader's familiarity with same [*2]are assumed. As with the prior proceeding, the Court cannot, at this juncture, reach the merits of the Petition inasmuch as a procedural objection has again been lodged by Respondent. This time, the objection centers not upon the manner of commencement, but rather, Petitioners' delay in seeking relief pursuant to CPLR 2304.

By Order to Show Cause (Motion # 2) signed at Respondent's request on December 2, 2024 (NYSCEF Doc No. 36), the Court directed the parties to show cause why the matter should not be dismissed as untimely pursuant to CPLR 2304. In resolving said application, the Court read and considered the following papers: NYSCEF Doc Nos. 1-2, 5, 7-14, 24-27, 31-34, 36, and 38-40. Upon reading and considering same, the Court denies the instant application for the reasons to follow.

The facts set forth in the Petition are not particularly relevant at this point in time insofar as the only issue before the Court at present is the timeliness of the motion to quash pursuant to CPLR 2304. It suffices to say that Petitioners are owners of business located in Franklin County, New York, and are federally licensed dealers in firearms ("FFL's"), among other things. Petitioners each received a subpoena duces tecum from Respondent's Office, signed by Assistant Attorney General ("AAG") Martha Grieco, Esq. The subpoenas, in relevant part, citing Executive Law § 63(12), General Business Law § 349(f), and CPLR 2302(a), commanded Petitioners to turn certain documents and information over to Respondent on or before July 17, 2024 by 5:00p.m., it being indicated that the documents and information were "relevant and material" to an ongoing investigation. The subpoenas further advised that a failure to comply with said subpoenas would subject the Petitioners to penalties pursuant to CPLR 2308, among others. The documents to be produced concerned Petitioners' security systems, annual firearms dealer certification, annual dealer certification, and compliance with certain requirements associated therewith. By way of the instant special proceeding, Petitioners, in the first instance, challenge Respondent's authority to issue the subpoenas and thus seek to quash same pursuant to CPLR 2304. As indicated, the same relief was sought and denied in the proceeding instituted on September 6, 2024.

Since the timeliness of the Petition/motion to quash the subpoenas is at the heart of the instant motion, the timeline surrounding the subpoenas necessarily becomes the focus. With respect to same, Respondent asserts, inter alia: (1) that the subpoenas were served on Petitioners on June 27, 2024, and set forth a return date of July 17, 2024; (2) the AAG who executed the subpoenas agreed to two extensions of time for the Petitioners to comply with said subpoenas following the request of Petitioners' counsel, the first being August 30, 2024 and the second being September 6, 2024; (3) the extensions granted were for the purpose of enabling Petitioners' compliance with the subpoenas, not to extend deadlines to challenge them; (4) that CPLR 2304, by its plain terms, requires Petitioners to move "promptly" to quash a subpoena; and (5) that Petitioners' present application (Motion # 1) was brought on October 31, 2024 by the filing of the Petition, over 100 days after the original return date and over fifty-five (55) days after the final extended deadline of September 6, 2024. Respondent argues that the foregoing renders the instant Petition/motion to quash untimely (see NYSCEF Doc No 31).

Further details with respect to the subpoenas are as follows. On July 8, 2024, Petitioners' counsel, Paloma Capanna, Esq., initially contacted AAG Grieco with respect to the subpoenas. Despite Petitioners not having formally retained counsel at this juncture, AAG Grieco, agreed to an extension until August 30, 2024 to comply with — it is stressed that the intent of the extension was not to provide an opportunity to prepare for litigation — the [*3]subpoenas (NYSCEF Doc No. 32). On August 1, 2024, Petitioners' counsel left AAG Grieco a voicemail indicating that she had been retained by Petitioners and further raising the August 30, 2024 deadline, AAG Grieco's upcoming vacation, and the possibility of either records production or communication regarding same in advance of the deadline. AAG Grieco took this voicemail to be another request for an extension for purposes of compliance with the subpoenas.

On August 5, 2024, Attorney Capanna sent a letter via email to AAG Grieco (NYSCEF Doc No. 9) on behalf of Petitioner Blue Line Sports LLC. Said letter requested the legal basis to issue the subpoenas to Petitioners, requested the withdrawal of the subpoena, and raised the possibility of a further extension in the event that AAG Grieco was out of the office on the date of the deadline, August 30, 2024. By email dated August 6, 2024, AAG Grieco replied, indicating that while she would be out of the office, she would be "able to deal with this matter" and further indicating Respondent's legal basis for issuance of the subpoenas (NYSCEF Doc No. 12). Thereafter, by letter to AAG Grieco via email dated August 7, 2024 (NYSCEF Doc No. 10), Attorney Capanna, amongst other things, again requested that the subpoenas be withdrawn, this time on behalf of both Petitioners, as well as a third client (NYSCEF Doc No. 11). By email of even date, AAG Grieco, indicated her respectful disagreement with Attorney Capanna's interpretation of the law and asked if Petitioners intended to comply with the subpoenas (NYSCEF Doc No. 13). In an August 14, 2024 letter to AAG Grieco, after addressing a variety of subjects in connection with the subpoenas, Attorney Capanna concluded by again requesting that the subpoenas be withdrawn. Further communication was had regarding the subpoenas via email on August 14, 2024 and August 16, 2024 (NYSCEF Doc No. 14).

A phone call between Attorney Paloma and AAG Grieco occurred on August 20, 2024. Per AAG Grieco, the discussion concerned compliance with the subpoenas by Petitioners and also involved a request from Attorney Paloma for an additional one week of time in which to comply with the subpoenas, thereby resulting in an extended return on the subpoenas to September 6, 2024. As mentioned, throughout the papers in support of this motion Respondent emphasizes that Petitioner's counsel never once indicated an intent to move to quash the subpoenas, and further stresses that the intent of the two extensions were to enable compliance, not an opportunity to challenge same.

Petitioner's counsel stresses that for their part, throughout the summer of 2024, Petitioners repeatedly and through multiple channels of communication lodged objections to the subpoenas, requested legal authority for same, and requested their withdrawal. It is correctly noted by Petitioners' counsel that in the context of a subpoena not returnable in a court, a request to withdrawal or modify the subpoena must first be made to the issuer prior to application to supreme court (CPLR 2304). Petitioner's counsel also argues that Respondent conveniently omits any reference to the prior related proceeding referenced above, which, though ultimately dismissed for jurisdictional reasons, was undeniably instituted on the extended return date for the subpoenas, September 6, 2024, and was followed fifteen (15) days later by the present Petition/motion to quash.^[FN1] Attorney Capanna also notes that omitted from Respondent's recounting is the fact that Petitioners' counsel notified AAG Grieco of Petitioners' intent to move to quash via email of September 4, 2024 (see NYSCEF Doc No. 38, ¶ 29).

In summarizing the parties' respective positions then, though the Court is cognizant of the risks of oversimplification, the essential thrust of Respondent's argument appears to be that the extensions in question were granted to enable compliance with the subpoena and that, in any event, the deadline for compliance passed on September 6, 2024, thus rendering the application to quash untimely. The essence of Petitioner's argument, on the other hand — aside from asserting that the Respondent has omitted certain crucial information with respect to the timeline and the contents of communication — is that the intent behind the extensions is not overly important since, among other things, Petitioners repeatedly objected to the subpoenas and a move to quash was a logical, easily anticipated, lawful, and timely remedy under the circumstances.^[FN2]

Having reviewed the communications by AAG Grieco and Attorney Capanna, the Court wishes to note at the outset that it appears that counsel for both parties were actively engaged with one another and acting in good faith during their communications. That the parties may have arrived at a sharp disagreement now does nothing to detract from this fact. Phrased more bluntly, the Court does not view this as one of those all-too-familiar scenarios where delay or inattentiveness to a matter on one or both sides gives rise to procedural issue that is best addressed by being avoided altogether. Having framed the instant dispute thusly, the Court now turns to its analysis and application of CPLR 2304.

CPLR 2304 states in pertinent part that:

A motion to quash, fix conditions or modify a subpoena shall be made promptly in the court in which the subpoena is returnable. If the subpoena is not returnable in a court, a request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made in the supreme court . . . ; Reasonable conditions may be imposed upon the granting or denial of a motion to quash or modify [emphasis added].

As to the asserted intent behind the extensions of time — that they were intended to permit compliance and not motion practice — the Court finds this argument to be unavailing. Whatever the intent behind the extensions, the effect was to extend the return date of the subpoenas and not simply to extend the time in which Petitioners could submit responsive records. The Court has nothing before it which indicates that the extensions were granted solely for the express purpose of permitting compliance with the subpoena. And while the Court can understand a level of frustration on Respondent's part when compliance is expected and instead a challenge is forthcoming, it is not insignificant that most of Petitioners' written communications concluded [*4]with a request that the subpoenas be withdrawn. Given the continuous requests to withdrawal the subpoenas, Respondent was certainly apprised of the fact that Petitioners objected to the subpoenas and that a move to quash might be forthcoming. Put simply, whatever Respondent's intent was with respect to the extensions, intent becomes irrelevant where no strings are attached or conditions imposed thereon, and this does not form a basis to grant the instant application.

Similarly misplaced is Respondent's reliance upon the October 31, 2024 date as the initial date upon which the application to quash was made. This version of events — while helpful to Respondent insofar as it would place Petitioners beyond the September 6, 2024 extended return date — omits the critical fact that an entirely separate proceeding was filed on September 6, 2024 in which Petitioners sought the same relief, to quash the subpoenas pursuant to CPLR 2304. That the papers in that case were fatally defective and jurisdiction lacking was made clear in the Court's prior Decision and Order, however, made equally clear was the fact that Petitioners' papers constituted an application/motion (see CPLR 2211) to quash a subpoena pursuant to CPLR 2211. For the reasons stated in the prior Decision and Order, the motion was defective and appropriately denied, however, the fact remains that a motion to quash the subpoenas at issue was filed on September 6, 2024, not as of the date of instant proceeding, October 31, 2024, as Respondent would have it. While the Court agrees with Respondent's assertion that the prior proceeding amounted to little more than a nullity, it cannot be denied that the proceeding, even if largely ineffectual for other purposes, was instituted on the extended return date and at the very least placed Respondent on notice that Petitioners sought to quash the subpoenas. Thereafter, Petitioners moved promptly to correct the defects with their papers and moved for substantially the same relief in filing the underlying Petition.

As to the text of the statute itself, Respondent indicates that a motion to quash under the present circumstances must be "made promptly," pursuant to CPLR 2304 (NYSCEF Doc No. 34 at 4-5). However, pursuant to the plain language of CPLR 2304, if the subpoena is not returnable in a court, a request to withdraw the subpoena must first be made to the issuer, and "thereafter" a motion to quash or modify may be made. While the statute might be construed —indeed, has been construed by multiple courts — as "thereafter" having the same meaning as "made promptly" presumably, the Legislature would not have utilized the two different phrases had it intended that only one phrase be ascribed meaning (see Anonymous v Molik, 32 NY3d 30, 37 [2018] [noting that courts must give effect to a statute's plain meaning and that in interpreting statutes, all parts are to be given effect, while avoiding a construction that would render one part meaningless] [internal citations omitted]). Again, as the Court lamented in its prior Decision and Order, the language utilized by CPLR 2304 is unhelpful at best, and misleading at worst. Thus, while Respondent is accurate insofar as it is asserted that as a general proposition a motion to quash should be made promptly following issuance of a subpoena (see e.g. Santangello v People, 38 NY2d 536, 539, n2 [1976] [noting that motions to quash should be made prior to the return date "in the court in which the subpoena is returnable [emphasis added]" in order to avoid "substantial delay in the proceeding"] [internal citations omitted]), what this actually means in practice is open to debate. To wit:

CPLR 2304 does not specify the time within which a motion to quash, condition, or modify has to be made. It only states that the motion should be made "promptly," which automatically makes the question of timeliness sui generis. It will all depend on the circumstances of the case. Certainly it would be a futility to make the motion returnable after the return date prescribed by the subpoena itself. In Santangello, 38 [*5]NY2d at 539, 381 N.Y.S.2d at 473, the New York Court of Appeals stated that a "motion to quash ... should be made prior to the return date." See Cherfas v. Wolf, 2008 WL 2746740 (Sup. Ct., Kings County 2008). However, once the subpoena has been complied with, "a motion to quash or vacate no longer is available [emphasis added].

(Patrick M. Connors, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C2304:3). Thus, while the Court views it as axiomatic that a motion to quash following the issuance of a subpoena cannot simply be made any time "thereafter" and that generally speaking, a motion to quash should be "made promptly," what constitutes promptness appears to be entirely case dependent.

In a more recent pronouncement concerning CPLR 2304, the Court of Appeals, citing their prior holding in Santangello, indicated that a motion to quash must be "made promptly, generally before the return date of the subpoena [emphasis added] (Brunswick Hosp. Center, Inc v Hynes, 52 NY2d 333, 339 [1981]). The use of the word "generally" by the Court of Appeals does not appear to this Court to be an accident and appears to take into account that any examination of the promptness of a motion to quash will be highly dependent upon the circumstances of the case.

In the instant matter, Respondent would simply have the Court count days between the original return date and October 31, 2024, which approach fails to take into account the circumstances of this case and the ongoing discussions between the parties. Moreover, the Court views Brunswick Hosp. Center, Inc. v Hynes, as tacitly acknowledging the fact that while a motion to quash should generally be made prior to the return date in order to be deemed "made promptly," there will be instances where this general rule does not apply, such as in the case at hand. This Court does not view CPLR 2304 as establishing a bright line when it comes to promptness, such that a motion to quash filed before the return date might be deemed prompt, while the same motion filed on the return date must be denied as untimely.^[FN3] Petitioner initially moved to quash the subpoenas on the extended return date of September 6, 2024, and while that application was denied, the instant application ensued shortly thereafter. Under the circumstances, the Court deems the motion timely pursuant to CPLR 2304.

An additional factor considered by the Court in arriving at the foregoing determination is New York State's "strong policy in favor of resolving cases on their merits" (Luderowski v Sexton, 152 AD3d 918, 921 [3d Dept 2017]). Bearing in mind the circumstances of this case, the issues raised, and the lack of any apparent prejudice to Respondent, the Court is of the view that a resolution of the underlying Petition should not turn upon the procedural issues raised on Respondent's application. Thus, in accordance with CPLR 404(a), having denied the instant application, the Court shall direct that Respondent answer upon terms to follow.

To the extent that the Court has not expressly addressed an issue or argument raised, they have been examined and found to be without merit or rendered academic, based upon the findings and determinations made herein. To the extent the Court has not addressed any requested relief, same is denied.

ACCORDINGLY, IT IS HEREBY

ORDERED, that Respondent's Motion (Motion # 2), brought by Order to Show Cause dated December 2, 2024, is DENIED for the reasons set forth herein; and it is further

ORDERED, that pursuant to CPLR 404(a), Respondent shall interpose an Answer to the Petition within thirty (30) days from service of a copy of this Decision and Order, together with notice of entry; and it is further

ORDERED, that this original Decision and Order shall be filed with the County Clerk by the Court via NYSCEF, and pursuant to CPLR 2220, Petitioners' counsel shall serve a copy of this Decision and Order, together with Notice of Entry, on all persons and entities entitled to notice under the law, and thereafter file proof of service with the County Clerk's Office.

The Foregoing Constitutes the Decision and Order of the Court