For Attorneys AmedLaw Legal Blog Criminal Appeals Civil Appeals

New York Appellate Lawyers Blog

Thursday, February 23, 2012

Amed Marzano & Sediva PLLC's New York appeals lawyers discuss ways a non-party to a lawsuit can resolve a subpoena.

A motion to quash or vacate is the exclusive vehicle to challenge the validity of a subpoena or the jurisdiction of the issuer of the subpoena.  Ayubo v Eastman Kodak Co., Inc., 158 AD2d 641 [2d Dept 1990].

CPLR 3120 (4) provides, inter alia, that “The notice or subpoena duces tecum shall specify the time, which shall be not less than twenty days after service of the notice or subpoena.” CPLR 3120 (4).  In Velez v Hunts Point Multi-Serv. Ctr., Inc., the court expanded on the requirements of CPLR 3120(4) coupled with the notice requirements of CPLR 3101(a)(4):

“Nothing in the amendments to CPLR 3120, however, dispenses with the general requirement of CPLR 3101(a)(4) that, where disclosure is sought from a nonparty, the nonparty shall be given notice stating the circumstances or reasons such disclosure is sought or required. The purpose of such requirement is presumably to afford a nonparty who has no idea of the parties' dispute or a party affected by such request an opportunity to decide how to respond.” Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 109-10 [1st Dept 2006]

Generally, 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 [1993] citing People v. Gissendanner, 48 N.Y.2d 543, 551.  “Rather, its purpose is ‘to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding.” Matter of Terry D., 81 NY2d 1042, 1044 [1993] citing Matter of Constantine v. Leto, 157 A.D.2d 376, 378.

In De Stafano v MT Health Clubs, Inc., 220 AD2d 331, 331 [1st Dept 1995], the First Department in affirming the IAS court held that, “The subpoenas duces tecum with notice of deposition served on plaintiff's health care providers were facially defective for failure to “stat [e] the circumstances or reasons such disclosure is sought or required”, as required by CPLR 3101(a)(4). De Stafano v MT Health Clubs, Inc., 220 AD2d 331, 331 [1st Dept 1995]

Other deficiencies to be mindful of:

CPLR 8001(a)

Any person whose attendance is compelled by a subpoena, whether or not actual testimony is taken, shall receive for each day's attendance fifteen dollars for attendance fees and twenty-three cents as travel expenses for each mile to the place of attendance from the place where he or she was served, and return. There shall be no mileage fee for travel wholly within a city.  McKinney's CPLR § 8001(a)


CPLR 2303

Any person subpoenaed shall be paid or tendered in advance authorized traveling expenses and one day's witness fee.” McKinney's CPLR § 2303(a)

Archived Posts


Marzano Lawyers PLLC Appellate Attorneys assist clients in New York and Connecticut. We serve all of New York City and the surrounding area, including but not limited to Manhattan, Brooklyn, Queens County, Kings County, Bronx, Yonkers, Staten Island, Westchester County, New York County, Hudson County, Suffolk County, & Nassau County.

© 2018 Marzano Lawyers PLLC | Disclaimer
65 Broadway, New York, NY 10006
| Phone: (212) 655-9561
Via Nazionale, 69, Roma, IT 00184
| Phone: +39 089.224.842
Via Torretta, 4, Salerno, IT 84122
| Phone: +39 089.224.842

Appellate Law Overview | New York Appeals | Civil Appeals | Criminal Appeals | Matrimonial Appeals | Estate Appeals | Commercial Appeals | Real Estate Appeals | Appellate Trial Support | Important Links & Forms


Amicus Creative