As explained in our case summary, the question in this case was whether an administrative subpoena issued by the Comptroller during an audit must comply with CPLR 3122(a)(2), which requires a subpoena seeking access to medical records to include a patient authorization. The Court (Fahey, J.) held that CPLR 3122(a)(2) does not apply to an administrative subpoena issued by the Comptroller.
The Court explained that this holding was compelled by the text of CPLR 3122(a)(2), which requires a patient authorization for a subpoena issued “pursuant to this rule.” Here, the “rule” referred to is Rule 3120, which itself applies to subpoenas issued after the commencement of an action, not presuit subpoenas like the ones issued by the Comptroller. Statutory and legislative history confirmed this point. Prior versions of the statute made clear that the patient-authorization requirement applied to subpoenas issued in discovery during a litigation. And legislative history also showed that the patient-authorization requirement was meant to govern subpoenas issued in discovery.
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