New York Subpoena

Introduction

Key Things to Know

1. 1

   A New York subpoena is a command that compels a person's attendance to testify, or the production of records for inspection and copying, in a pending action, administrative proceeding or arbitration.

2. 2

   The New York attendance fee is fifteen dollars for each day's attendance, payable whether or not actual testimony is taken (CPLR 8001(a)).

3. 3

   New York mileage is twenty-three cents for each mile to the place of attendance from the place where the witness was served, and return, so it is measured from the point of service rather than from the witness's home.

4. 4

   There is no mileage fee at all for travel wholly within a city (CPLR 8001(a)), which is why many New York City appearances carry the day fee alone.

5. 5

   CPLR 2302(a) allows a subpoena to issue without a court order from the clerk, a judge where there is no clerk, the attorney general, an attorney of record, an arbitrator, a referee, or a member of a board, commission or committee authorized by law to hear, try or determine a matter.

6. 6

   Some New York subpoenas must come from the court instead: an original record where a certified transcript or copy would be admissible, the attendance of a person confined in a penitentiary or jail, and, absent patient authorization, a trial subpoena duces tecum for a patient's medical records (CPLR 2302(b)).

7. 7

   A New York notice or subpoena duces tecum must specify a time not less than twenty days after service (CPLR 3120(2)), and the Unified Court System states that a subpoena for records must also be served on all parties to the action following CPLR 2303.

New York Requirements for Subpoena

• Attendance Fee of Fifteen Dollars a Day

  CPLR 8001(a) entitles any person whose attendance is compelled by a subpoena to fifteen dollars for attendance fees for each day's attendance, whether or not actual testimony is taken. The Unified Court System states the same $15.00 per day figure in its New York City Civil Court guidance.

• Mileage Measured From the Place of Service

  CPLR 8001(a) pays twenty-three cents as travel expenses for each mile to the place of attendance from the place where the witness was served, and return. The starting point is the place of service rather than the witness's residence, which changes the arithmetic whenever a witness is served away from home.

• No Mileage Fee for Travel Wholly Within a City

  CPLR 8001(a) ends with a carve-out: there shall be no mileage fee for travel wholly within a city. The Unified Court System puts it the other way round for New York City, noting the 23 cents per mile applies if the witness is served outside the City of New York.

• A Long List of Issuers, No Court Order Needed

  CPLR 2302(a) permits issuance without a court order by the clerk of the court, a judge where there is no clerk, the attorney general, an attorney of record for a party to an action, administrative proceeding or arbitration, an arbitrator, a referee, or any member of a board, commission or committee authorized by law to hear, try or determine a matter.

• Court-Only Subpoenas, Including Medical Records

  CPLR 2302(b) requires the court to issue a subpoena for an original record or document where a certified transcript or copy is admissible in evidence, and for the attendance of a person confined in a penitentiary or jail. Absent an authorization by the patient, a trial subpoena duces tecum for the patient's medical records may only be issued by a court.

• Records: Not Less Than Twenty Days After Service

  CPLR 3120(2) requires the notice or subpoena duces tecum to specify a time not less than twenty days after service, plus the place and manner of inspection, and to set forth the items by individual item or by category and describe each with reasonable particularity.

• Nonpayment Voids the Duty to Appear

  The Unified Court System's New York City Civil Court guidance states that the fee must be paid a reasonable amount of time before the scheduled date and that nonpayment of the witness fee voids the duty to appear. It adds that a records subpoena must also be served on all parties following CPLR 2303.

• Contempt Plus a Capped Money Penalty

  CPLR 2308(a) makes failure to comply with a subpoena issued by a judge, clerk or officer of the court punishable as a contempt of court, with a penalty not exceeding one hundred fifty dollars plus damages sustained. CPLR 2308(b) handles subpoenas not returnable in a court, with costs not exceeding fifty dollars and a penalty capped at fifty dollars plus damages.