Supreme Court, Albany County

Decided on May 13, 2026

Index No. 908601-25

Thomas Marcelle, J.^FN1

[*1]

All cases begin somewhere, and here the genesis of the dispute lies in the New York State Department of Health's (DOH) suspicion that respondents were operating, directly or indirectly, a home care services agency without the license required by Public Health Law § 3605(1).^FN2 Accordingly, in October 2023, DOH made inquiries of respondents and they complied. They completed a questionnaire and executed an attestation addressing the nature of [*2]their business operations. In particular, respondents told DOH that they did not provide home health aide or personal care services, but rather ran a non-medical companion and consulting service.

In August 2024, DOH followed up with a second inquiry. Again, respondents provided information consistent with their prior characterization.

DOH's curiosity was not satisfied; so it sought more information. This time, respondents were much more reticent. Thereafter, DOH, in 2025, issued a subpoena duces tecum. At this point, respondents' reticence turned into defiance. Respondents felt that they had answered DOH's questions and that DOH's pursuit of them was beyond the scope of its authority and unsupported by any factual basis for further investigation—in short, respondents felt that they were being picked on by the DOH without a basis either in law or fact.

It does not take Carnac the Magnificent to predict what would happen (and did happen) next—DOH sued to compel compliance with its administrative subpoena. Respondents have cross-moved to quash. As is true for all administrative subpoenas, in order to be valid, the DOH must show three things: (1) the agency must possess statutory authority over the subject matter and the entity that the subpoena targets; (2) if authority exists, DOH must have a sufficient factual predicate to justify the subpoena's issuance; (3) assuming DOH clears the first two hurdles, it still must demonstrate that the subpoena is neither overbroad nor being used as a tool for harassment (see Broadway Stages, Ltd. v New York State Joint Comm'n on Pub. Ethics, 201 AD3d 1066, 1067 [3d Dept 2022]). This is a uniquely close case and as such, requires a detailed examination of both the law and the facts.

1. DOH must possess statutory authority to subpoena records from respondents.

Starting with the fundamentals, DOH has no subpoena power except that conferred upon it by the Legislature.^FN3 Public Health Law § 206(4)(a) authorizes DOH to "issue subpoenas, compel the attendance of witnesses and compel them to testify in any matter or proceeding before the [DOH Commissioner]." Respondents say that the power contained in § 206(4)(a) is inapplicable under the facts of this case.

A

Respondents, at least by implication, make a statutory construction appeal. They argue that since there is no "matter or proceeding before the Commissioner," and because § 206(4)(a) limits DOH's subpoena power to any matter or proceeding, DOH lacks the power to issue the subpoena in this case.

To prevail on this theory, respondents must be correct on two separate statutory interpretation propositions: (1) DOH's § 206(4)(a)'s subpoena power is dependent on the existence of an ongoing "any matter or proceeding" and (2) the phrase "matter or proceeding" is limited to an adjudicatory process. A statutory construction analysis is required on each.

The first issue is whether § 206(4)(a)'s subpoena power is dependent on the existence of "any matter or proceeding" or is an independent power that DOH can employ even if no matter or proceeding exists. No cases have directly decided this issue and neither party has cited any. [*3]However, there are two strands of authority that, while close, lack precise congruency (compare Chassin v Helaire Nursing Agency, Inc., 211 AD2d 581, 581 [1st Dept 1995] [holding that Public Health Law § 206(4)(a) grants DOH the power to issue a subpoena for further investigation when warranted by a sufficient factual basis] with Matter of Axelrod, 99 AD2d 531, 532 [2d Dept 1984] [holding that Public Health Law § 206(4)(a) grants the DOH commissioner the power to issue a subpoena in furtherance of an investigation "in any matter or proceeding before him"]).

To begin with, Section 206(4)(a) grants DOH two distinct powers: (1) a subpoena power to make people and/or entities produce documents and (2) a compulsory process power that allows it to compel people "to testify in any matter or proceeding before the [DOH Commissioner]." The latter power, the compulsory process power, is connected to the existence of a formal process. There is no question about this—neither logic nor grammar suggest a contrary conclusion. So, since the compulsory process power is moored to an adjudicatory process, can the subpoena power be different in kind and scope—i.e., independent of or unmoored to a pending process?

The familiar series qualifier canon of statutory construction provides resolution (see Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 19 at 147 [1st ed 2012]). The canon instructs that "a modifier at the beginning or end of a series of terms modifies all the terms" (United States v Lockhart, 749 F3d 148, 152 [2d Cir 2014]). This canon is sourced in basic grammar. Under conventional rules of grammar, "when there is a straightforward, parallel construction that involves all nouns or verbs in a series, a modifier at the end of the list normally applies to the entire series" (Facebook, Inc. v Duguid, 592 US 395, 402 [2021]).

In this case, the canon counsels against reading the subpoena differently than the compulsory process power. In other words, the canon suggests that Section 206(4)(a)'s "in any matter or proceeding" modifier applies both to issuing subpoenas as well as compelling the attendance and testimonies of witnesses. Accordingly, the court holds that Public Health Law § 206(4)(a) grants DOH the power to issue a subpoena only if there exists "any matter or proceeding before [the DOH commissioner]" (Matter of Axelrod, 99 AD2d at 532).

B

Respondents argue since there is no proceeding against them, DOH lacks power to subpoena their records. Somewhat true—DOH has not commenced any legal, disciplinary or administrative proceeding against respondents. But, for this fact to be meaningful, it would require the phrase "matter or proceeding" to be limited to an adjudicatory process.

There is precious little case law that is helpful and none that speaks definitively on this subject. Absent guidance, the court must determine the legislature's intent concerning DOH's subpoena power. The interpretation of legislative intent begins with the statutory language (Yatauro v Mangano, 17 NY3d 420, 426 [2011]). Thus, the words of the statute and what those words convey, in context, is what the statute means and what the legislature intended it to govern.

A proceeding is a familiar term and means an adjudicatory process. Indeed, according to Black's Law Dictionary, a proceeding is "a procedural [device] for seeking redress from a tribunal or agency which includes all acts and events between the time of commencement and the entry of judgment" (Black's Law Dictionary [12th ed. 2024]). In this case, DOH has not [*4]commenced a proceeding against respondents. Consequently, respondents win on that score and the question becomes whether there is "a matter" pending before DOH such that would allow it to invoke its Section 206(4)(a) subpoena power.

As always, the place to start interpretation is with the meaning of the word "matter." Matter has two meanings: (1) a subject under consideration or (2) something that is to be tried or proved (Black's Law Dictionary [12th ed. 2024]). To state the obvious, the first definition is more expansive in nature than the second definition because the first definition is not contingent on the existence of an adjudicatory process whereas the second one is.

Unsurprisingly, respondents take a narrow view of what constitutes a "matter" that triggers DOH's subpoena power, and DOH takes a broad view. Now, no court has exactly pronounced which definition of matter is correct. However, the First Department, at least implicitly, has taken the broad view (Chassin, 211 AD2d at 581).

The court agrees with this construction. If the word "matter" were limited to proving a fact at a proceeding, then it would be entirely encompassed within the term proceeding. Consequently, it would add nothing to the statute. The court cannot presume that the Legislature inserted redundant, useless, and wasted language into a statute. To the contrary, words in a law "cannot be meaningless, else they would not have been used" (United States v Butler, 297 US 1, 65 [1936]). Therefore, matter, as that term is employed in Public Health Law §206(4)(a), means a subject under consideration—or in this context, a subject matter given to DOH.

C

Respondents, while disagreeing with the legal path that led the court to this point in the analysis, says no problem—since their operation is not within DOH's purview, DOH has no jurisdiction over them. So, let's review this contention. To begin with, both parties agree that Health Law Article 36 mandates that DOH license and oversee home care service agencies.

Respondents maintain that they operate far beyond the boundaries of Article 36. Specifically, they argue that since "personal care services" and "home health aide services" involve a licensed home care services agency executing a physician's prescription (Public Health Law §3602[4] & [5]), and that since they (respondents) are neither licensed nor executing a physician's prescription, they are beyond DOH's statutory jurisdiction and DOH has no business issuing a subpoena to them.

The problem with respondents' argument is this—if DOH cannot investigate unlicensed operators, how does it prevent scofflaws from operating outside the licensing scheme? Ultimately, the logical flaw in respondents' reasoning is that respondents conflate the question of DOH's authority to regulate and subpoena unlicensed entities in the abstract with the question of whether DOH had a sufficient factual predicate to justify the subpoena's issuance. In fact, the First Department in Chassin authorized the issuance of a subpoena precisely to investigate whether a facility was operating a home care services business without a license (see Chassin, 211 AD2d 581).

Therefore, the court concludes that DOH has the authority to issue a subpoena to an unlicensed person or entity under Public Health Law Article 36 provided that it has a sufficient factual predicate to believe that person or entity should have a license to operate as a home care service agency.

2. DOH must possess sufficient factual predicate to justify the subpoena's issuance.

In addition to authority, DOH must show a factual predicate that justifies the subpoena's issuance. The question naturally flows: how much of a predicate need exist before DOH can flex its subpoena power?

Start with the fundamentals: a government subpoena directed to an entity not under the government's regulatory authority constitutes an invasion into that entity's papers and effects (US Const amend IV). The court does not suggest that probable cause is required to sustain an administrative subpoena—that bar is far too high (see e.g., New York v Burger, 482 US 691, 703 [1987] [holding that probable cause is not required for administrative search]). On the other hand, merely forbidding arbitrary and capricious use of the subpoena power does not adequately protect against government overreach in matters involving a person or entity that the government neither licenses nor regulates (cf Super Smoke N Save LLC v New York State Cannabis Control Bd., 86 Misc 3d 452, 460 [Albany Sup Ct 2025]). Indeed, it is ancient law that "no agency of government may conduct an unlimited and general inquisition into the affairs of persons within its jurisdiction solely on the prospect of possible violations of law being discovered, especially with respect to subpoenas duces tecum " (A'Hearn v Comm. on Unlawful Prac. of L. of New York Cnty. Lawyers' Ass'n, 23 NY2d 916, 918 [1969]).

Chassin held that DOH's issuance of a subpoena was justified where a "preliminary investigation established a sufficient factual basis to warrant investigation" (see Chassin, 211 AD2d 581). Axelrod held that where DOH subpoenas an entity based on receipt of a complaint, "there must be a minimal showing that . . . the complaint reasonably justifies the issuance of the subpoena in furtherance of an investigation" (In re Axelrod, 99 AD2d at 532).

That leaves the question of precisely defining the standard. At oral argument, the court pressed DOH to articulate the governing standard; it could not. That is, DOH could not articulate the factual standard necessary for the DOH to issue a subpoena. In the absence of precise guidance, the court holds that DOH must have objective, specific, and credible facts from which to suspect that an entity may have violated, is violating, or will violate the law; and the subpoena seeks information that will clarify or explain the evidence or reasonably lead to more relevant information concerning the matter under investigation.

The penultimate issue is at hand—does DOH meet the above standard for issuing a subpoena? DOH cites repeated website representations, advertisements, service descriptions, testimonials describing hands-on assistance and a tort claim filed against respondents as objective information that respondents are providing home care services that require a license. Certainly, none of the information, on its face, even approaches clear evidence that respondents crossed any legal lines. However, some social media representations suggest or at least appear aimed at giving the impression that respondents provide home care services. There were multiple such advertisements and descriptions posted over a substantial period of time. Viewing the evidence in the aggregate, then, by the thinnest of margins, DOH has produced enough objective information to warrant a subpoena to find out more about respondents' operations. Therefore, the court finds that DOH has cleared the second prong necessary to compel compliance with the subpoena.

3. DOH must show that the subpoena is not overbroad or is being used as a tool for harassment.

This brings the case to the home stretch—is the subpoena overbroad and is it being used as a tool for harassment? Respondents argue that none of DOH's evidence demonstrates a [*5]violation of the law. Rather, the website, the testimonials, and other statements are consistent with their companionship business, and consistent with its position that they are not a home service agency subject to license and regulation. Further, respondents note all DOH has to show this court, after two rounds of questionnaires, is thin proof and dubious inferences. Thus, respondents conclude, with some force, the lack of any real violations of law coupled with no concrete evidence that they operated as a home care agency demonstrate that DOH's subpoena was issued in bad faith.

The court must acknowledge there exists an underlying current that DOH is employing its awesome power not in the fair pursuit of public health, but merely to prove its suspicions right. The information cited by DOH is unmoored from any actual complaint or problem. Indeed, it seems a rather odd case for DOH to go to war over—the violations, if any, appear to be exceedingly modest ones.

Nevertheless, while respondents may be correct, the court is not prepared to hold that DOH has a hidden nefarious motive—given that there is no proof of such a motive. And without direct proof, the court is loath to impute such a motive. Indeed, it would be a serious overstep of the judicial power to limit the investigation of the executive branch on this record.

Therefore, it is

ORDERED that Petitioner's motion to compel compliance with its subpoena is granted; and it is further

ORDERED that Respondents' cross-motion to quash is denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: May 13, 2026

THOMAS MARCELLE, J.S.C.