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Judge Grants Order Allowing Empire Wine to Subpoena NYSLA Employees

Last week, and as noted originally by Capitol Confidential, Honorable Gerald W. Connolly, Acting Supreme Court Justice for the State of New York Supreme Court for the County of Albany, issued a decision and order allowing Colonie-based retailer Empire Wine to subpoena NYSLA employees. See Empire Wine & Spirits LLC v. New York State Liquor Authority, Index No. 555-15. The retailer originally brought a special proceeding to compel NYSLA to comply with subpoenas commanding testimony at an administrative proceeding before the NYSLA held on January 23, 2015. Id. at 2. At the proceeding in January, Empire Wine alleged that NYSLA prosecutors refused to allow two subpoenaed respondents to testify during the proceeding and that, instead of moving to quash the subpoenas in advance, the prosecution waited until the witnesses were called to testify to alert Empire that the subpoenaed respondents would not testify. Id. As a result, the Administrative Law Judge adjourned the hearing indefinitely. Id. For more information on the suit and proceeding between the NYSLA and Empire Wine, see, e.g., Retailer Empire Wine Sues New York State Liquor Authority: Direct Shipping; Court Dismisses Empire’s Lawsuit Against NYSLA ; and Bill Introduced to New York State Assembly Supports Empire Wine.

In its motion to compel, Empire argued that, in defense against the original charges brought against the retailer by the NYSLA, the retailer had the right to subpoena witnesses to testify at a disciplinary hearing before the NYSLA as per 9 NYCRR 54.3(h), which provides the following:

Any licensee desiring to subpoena a witness may do so in the name of the Chairman of the State Liquor Authority and in the manner provided for subpoenas in the New York Civil Practice Law and Rules. If evidence other than oral testimony is required, such as documents or written data, the subpoena shall set forth the specific matter to be produced.

The motion addresses other relevant state regulations, such as CPLR § 2302(a) and CPLR § 2308(b) (the latter which specifically refers to subpoenas that are non-judicial), arguing that the Court should order compliance when a subpoena is authorized as an issuer has legal authority to issue such subpoena, which Empire argued was the case (i.e., an attorney of record for a party to an administrative proceeding can issue a subpoena without a court order). 

In its “cross-motion,” the NYSLA argued to quash the subpoenas for the following reasons:

  • Empire failed to pay the proposed witnesses the statutorily required fees;
  • Subpoenas were not issued for proper purposes and instead sought irrelevant information;
  • Empire identified no lawful purposes to compel respondents to testify; and
  • Subpoenas were improperly served.

Further, and perhaps of most interest to industry, the Authority argued that Empire’s assertions that it wanted to use subpoenas to introduce evidence to the Authority’s policies and alleged changes in policy were “without merit as the Authority’s position that a New York State licensee’s violation of other laws is a basis for an improper conduct charge.” Id. at 4.

Upon review, the matters pertaining to fees were rendered resolved and Justice Connolly instead focused on the remaining issue at hand: whether Empire’s subpoenas were authorized and, if so, whether respondents has a clear legal right to quash said subpoenas. Quoting Matter of Edge Ho Holding Corp, 256 N.Y. 374 (1931)—and suggesting that there, indeed, seemed to be fruitful logic behind Empire’s requests as opposed to probing for irrelevant information—Justice Connolly asserted that Empire demonstrated the subpoenas were authorized and NYSLA failed to demonstrate that issuing said subpoena was beyond the power of Empire’s counsel and also failed to “demonstrate a clear legal right to have the subpoenas at issue quashed at this juncture.” Empire Wine & Spirits LLC v. New York State Liquor Authority, Index No. 555-15 at 6. The Court noted it was “unwilling at this time . . . to quash the subpoenas at issue herein.” Id. 

As a result, the Court granted Empire’s application (in part) and denied the NYSLA’s application to quash. Presumably, this means that another administrative hearing will be scheduled, during which Empire will be allowed to subpoena NYSLA employees that previously refused to testify. As in many circumstances, the law once again reveals itself to be long (procedurally), but an interesting process nonetheless. Will Empire receive its long, fought out vindication? Stay tuned.

For more information on New York State wine or alcohol law, direct shipping, or establishing a New York beverage business, please contact Lindsey Zahn.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.


Lindsey A. Zahn


Lindsey is the founder and author of On Reserve: A Wine Law Blog. She is an alcohol beverage and food attorney and is admitted to the New York State Bar.

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