§ 5224 — Subpoena; procedure

New York § 5224

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 52: Enforcement of Money Judgments

Text

Rule 5224. Subpoena; procedure. (a) Kinds and service of subpoena. Any\nor all of the following kinds of subpoenas may be served:\n 1. a subpoena requiring attendance for the taking of a deposition upon\noral or written questions at a time and place named therein; or\n 2. a subpoena duces tecum requiring the production of books and papers\nfor examination at a time and place named therein; or\n 3. an information subpoena, accompanied by a copy and original of\nwritten questions and a prepaid, addressed return envelope. Service of\nan information subpoena may be made by registered or certified mail,\nreturn receipt requested. Answers shall be made in writing under oath by\nthe person upon whom served, if an individual, or by an officer,\ndirector, agent or employee having the information, if a corporation,\npartnership or sole proprietorship. Each question shall be answered\nseparately and fully and each answer shall refer to the question to\nwhich it responds. Answers shall be returned together with the original\nof the questions within seven days after receipt. Where the person\nserving the subpoena is a judgment creditor, other than where the state,\na municipality or an agency or officer of the state or a municipality is\nthe judgment creditor, the following additional rules shall apply:\n (i) information subpoenas, served on an individual or entity other\nthan the judgment debtor, may be served on an individual, corporation,\npartnership or sole proprietorship only if the judgment creditor or the\njudgment creditor's attorney has a reasonable belief that the party\nreceiving the subpoena has in their possession information about the\ndebtor that will assist the creditor in collecting his or her judgment.\nAny information subpoena served pursuant to this subparagraph shall\ncontain a certification signed by the judgment creditor or his or her\nattorney stating the following: I HEREBY CERTIFY THAT THIS INFORMATION\nSUBPOENA COMPLIES WITH RULE 5224 OF THE CIVIL PRACTICE LAW AND RULES AND\nSECTION 601 OF THE GENERAL BUSINESS LAW THAT I HAVE A REASONABLE BELIEF\nTHAT THE PARTY RECEIVING THIS SUBPOENA HAS IN THEIR POSSESSION\nINFORMATION ABOUT THE DEBTOR THAT WILL ASSIST THE CREDITOR IN COLLECTING\nTHE JUDGMENT. By signing the certification, the judgment creditor or\nattorney certifies that, to the best of that person's knowledge,\ninformation and belief, formed after an inquiry reasonable under the\ncircumstances, that the individual or entity receiving the subpoena has\nrelevant information about the debtor.\n (ii) if an information subpoena, served on an individual or entity\nother than the judgment debtor, does not contain the certification\nprovided for in subparagraph (i) of this paragraph, such subpoena shall\nbe deemed null and void.\n (iii) if an information subpoena, served on an individual or entity\nother than the judgment debtor, does contain the certification provided\nfor in subparagraph (i) of this paragraph, the individual, corporation,\npartnership or sole proprietorship receiving the subpoena, may move to\nquash the subpoena pursuant to section twenty-three hundred four of this\nchapter, except that such motion shall be made in the court that issued\nthe underlying judgment.\n (iv) failure to comply with an information subpoena shall be governed\nby subdivision (b) of section twenty-three hundred eight of this\nchapter, except that such motion shall be made in the court that issued\nthe underlying judgment.\n 4. an information subpoena in the form of magnetic tape or other\nelectronic means. Where the person to be served consents thereto in\nwriting, an information subpoena in the form of magnetic tape or\nelectronic means, as defined in subdivision (f) of rule twenty-one\nhundred three of this chapter, may be served upon the individual, or if\na corporation, partnership, limited liability company, or sole\nproprietorship, upon the officer, director, agent or employee having the\ninformation. Answers shall be provided within seven days.\n (a-1) Scope of subpoena duces tecum. A subpoena duces tecum authorized\nby this rule and served on a judgment debtor, or on any individual while\nin the state, or on a corporation, partnership, limited liability\ncompany or sole proprietorship doing business, licensed, qualified, or\notherwise entitled to do business in the state, shall subject the person\nor other entity or business served to the full disclosure prescribed by\nsection fifty-two hundred twenty-three of this article whether the\nmaterials sought are in the possession, custody or control of the\nsubpoenaed person, business or other entity within or without the state.\nSection fifty-two hundred twenty-nine of this article shall also apply\nto disclosure under this rule.\n (b) Fees. A judgment debtor served with a subpoena under this section\nand any other person served with an information subpoena shall not be\nentitled to any fee. Any other person served with a subpoena requiring\nattendance or the production of books and papers shall be paid or\ntendered in advance authorized traveling expenses and one day's witness\nfee.\n (c) Time and place of examination. A deposition on oral or written\nquestions or an examination of books and papers may proceed upon not\nless than ten days' notice to the person subpoenaed, unless the court\norders shorter notice, before any person authorized by subdivision (a)\nof rule 3113. An examination shall be held during business hours and, if\ntaken within the state, at a place specified in rule 3110. Upon consent\nof the witness, an examination may be held at any other place within the\nstate and before any officer authorized to administer an oath.\n (d) Conduct of examination. The officer before whom the deposition is\nto be taken shall put the witness on oath. If requested by the person\nconducting the examination, the officer shall personally, or by some one\nacting under his direction, record and transcribe the testimony and\nshall list all appearances by the parties and attorneys. Examination and\ncross-examination of the witness shall proceed as permitted in the trial\nof actions in open court. Cross-examination need not be limited to the\nsubject matter of the examination in chief. All objections made at the\ntime of the examination to the qualifications of the officer taking the\ndeposition, or of a person recording it, or to the manner of taking it,\nor to the testimony presented, or to the conduct of any person, and any\nother objection to the proceedings, shall be noted by the officer upon\nthe deposition and the deposition shall proceed subject to the right of\na person to apply for a protective order. The deposition shall be taken\ncontinuously and without unreasonable adjournment, unless the court\norders or the witness agrees otherwise. If the witness does not\nunderstand the English language, the judgment creditor shall, at his own\nexpense, provide a translation of all questions and answers. Unless the\ncourt orders otherwise, a person other than the judgment debtor served\nwith a subpoena duces tecum requiring the production of books of account\nmay produce in place of the original books of account a sworn transcript\nof such accounts as are relevant.\n (e) Signing deposition; physical preparation. At the request of the\nperson conducting the examination, a deposition on written questions or\na deposition on oral questions which has been transcribed shall be\nsubmitted to the witness and shall be read to or by him, and any changes\nin form or substance which the witness desires to make shall be entered\nupon the deposition with a statement of the reasons given by the witness\nfor making them; and the deposition shall then be signed by the witness\nbefore any officer authorized to administer an oath. If the witness\nfails to sign the deposition, the officer before whom the deposition was\ntaken shall sign it and state on the record the fact of the witness's\nfailure or refusal to sign together with any reason given. The\ndeposition may then be used as fully as though signed. Where testimony\nis transcribed, the officer before whom the deposition was taken shall\ncertify on the deposition that the witness was duly sworn by him and\nthat the deposition is a true record of the testimony given by the\nwitness.\n (f) Subsequent examination. Leave of court is required to compel a\njudgment debtor to appear for the taking of his deposition or to compel\nthe production by him of books and papers within one year after the\nconclusion of a previous examination of him with respect to the same\njudgment.\n