        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

947
CA 14-00187
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF WATERTOWN CITY SCHOOL
DISTRICT AND BOARD OF EDUCATION OF
WATERTOWN CITY SCHOOL DISTRICT,
PETITIONERS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

ANONYMOUS, A TENURED TEACHER,
RESPONDENT-RESPONDENT.


THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (JOHN A. SICKINGER OF
COUNSEL), FOR PETITIONERS-APPELLANTS.

RICHARD E. CASAGRANDE, LATHAM (A. KATHYA STEPHENSON OF COUNSEL), FOR
RESPONDENT-RESPONDENT.


     Appeal from a judgment and order (one paper) of the Supreme
Court, Jefferson County (James P. McClusky, J.), entered September 27,
2013 in a proceeding pursuant to CPLR article 75. The judgment and
order denied the petition to quash the subpoena duces tecum issued by
the hearing officer on July 5, 2013 and granted the cross motion to
compel petitioners to comply with the subpoena duces tecum.

     It is hereby ORDERED that the judgment and order so appealed from
is unanimously reversed on the law without costs, the cross motion is
denied and the petition is granted.

     Memorandum: Petitioners commenced this proceeding seeking, inter
alia, to quash a subpoena duces tecum served on them by respondent, a
tenured teacher, in the course of an administrative proceeding
commenced against respondent pursuant to Education Law § 3020-a.
Respondent cross-moved to compel petitioners to comply with the
subpoena duces tecum. We agree with petitioners that Supreme Court
erred in denying the petition and granting the cross motion. The
record establishes that, following an initial prehearing conference in
the section 3020-a proceeding, the Hearing Officer granted
respondent’s request for production of the testifying high school
students’ records, notwithstanding protections under the Family
Educational Rights and Privacy Act of 1974 (FERPA), and thereafter
limited production of students’ records to those from seventh grade
forward. In connection with that request, the Hearing Officer issued
a subpoena duces tecum ordering the production of those student
records. Although the Hearing Officer had the authority to order the
production of student records that were material and relevant to
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                                                         CA 14-00187

respondent’s defense (see § 3020-a [3] [c] [iii] [A], [C]), it is well
established that, “[g]enerally, a subpoena duces tecum may not be used
for the purpose of discovery or to ascertain the existence of
evidence” (Matter of Terry D., 81 NY2d 1042, 1044). Where, as here,
“the relevance of the subpoena is challenged, it is incumbent upon the
issuer to come forward with a factual basis establishing the relevance
of the documents sought to the investigation,” to show “that the
material sought bears a reasonable relation to the matter under
investigation” (Matter of N. v Novello, 13 AD3d 631, 632; see Matter
of Constantine v Leto, 157 AD2d 376, 378, affd for the reasons stated
77 NY2d 975). Here, the allegations of misconduct against respondent
involved activities outside of the classroom, and respondent stated
only generally that the students’ records were “highly relevant” in
asserting a defense and that the records are “necessary and relevant
to the preparation of a defense to the charges on its face.” Thus, in
light of respondent’s failure to indicate how the records are
reasonably related to respondent’s defense and a factual basis
establishing their relevance (see Novello, 13 AD3d at 632), we
conclude that the court abused its discretion in refusing to quash the
subpoena duces tecum (see generally Kavanagh v Ogden Allied
Maintenance Corp., 92 NY2d 952, 954; Kephart v Burke, 306 AD2d 924,
925).

     In light of our decision, we do not consider petitioners’
remaining contention, concerning the alleged violation of FERPA.




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
