In General
If you are unable to get a witness to appear voluntarily, or you need records produced in court that are not in your possession, you can ask the court to issue a subpoena. A subpoena is a legal document that commands the person named in it to appear in court to testify or to produce records. For example, police and fire department, Buildings Department, hospital, telephone or Con Edison records can be subpoenaed. An expert witness cannot be compelled to testify by subpoena.
If you would like to subpoena a witness or documents, you must come to the Clerk’s office and fill out the subpoena forms. Go to Court Directory to find out where to go in your county. You can also get help with a subpoena from the Help Center or from the court attorneys in the Part where your case is assigned.
After you have filled out the forms, the clerk will present the subpoena to the judge for signature. You must then arrange for the service of the subpoena and the payment of a witness fee and, where appropriate, travel expenses for the person subpoenaed. You are responsible for paying these fees unless the judge who signs the subpoena specifically waives payment. Any person, including a friend or relative, who is 18 years of age or older and who is not a party to the case can serve the subpoena. A party cannot serve a subpoena themselves unless the judge who signs the subpoena orders that it can be served by the party. A copy of the subpoena must also be served on the party on the other side of the case, or on that party’s attorney if there is one. For detailed information on how to serve a subpoena, see the Instructions for Service of Subpoena section on this page.
A subpoena can be served any time before the hearing. However, a witness should be given a “reasonable” amount of time before he or she must appear. Generally, it is considered reasonable to serve the subpoena at least 5 days before the hearing date. This will allow the person subpoenaed to prepare the items you request or appear at the hearing.
Instructions for Service of Subpoena
Subpoena Types
There are three kinds of Subpoena:
- Subpoena To Testify (Ad Testificandum): Requires a person to come to the Court to testify as a witness.
- Subpoena For Records (Duces Tecum): Requires documents, papers, writing, etc. to be brought to the Court.
- Information Subpoena: Requires the information be provided to the person requesting it.
Methods of Service
A Subpoena to Testify or a Subpoena for Records is generally served on an individual* by personal (in hand) delivery. (*For service on a corporation or on a partnership, see the Clerk.)
For service on an individual, under certain circumstances it may be appropriate to use an alternate method of service, such as “Substituted Service” or “Conspicuous Service”:
- “Substituted Service” is the personal service of the Subpoena on someone other than the person who is being subpoenaed (the witness) at the actual place of business or place of residence of the witness. The server must then mail a copy of the Subpoena to the witness by first class mail to the actual place of business or place of residence of the witness. Mark the envelop “Personal and Confidential.”
- “Conspicuous Service” is the service of the Subpoena by leaving it at the residence or place of business of the witness. Prior to leaving the Subpoena, the server must make at least two attempts. If no one is found on either attempt, on the third try the Subpoena may be affixed to the door with adhesive tape, and a copy must be mailed to the residence of the witness by first class mail. Mark the envelope “Personal and Confidential.”
An Information Subpoena is generally served by Certified or Registered Mail, Return Receipt Requested, or it may alternatively be served by personal delivery or by using the “Substituted Service” or “Conspicuous Service” method.
Who May Serve a Subpoena
Anyone not a party to the action, who is over the age of 18, and not a Police Officer, may serve the Subpoena.
Proof of Service
The person who serves the Subpoena to Testify or the Subpoena for Records must fill out an Affidavit of Service and have it notarized.
Procedure
The person who is going to serve the Subpoena must:
- Find the person to be served.
- Show that person the original Subpoena.
- Give that person a copy of the Subpoena.
- Fill out the Affidavit of Service on back of the original.
- Retain the Affidavit of Service for further procedures if the person fails to comply with the Subpoena.
- A copy of a Subpoena for Records (Duces Tecum) must also be served either “in hand” or by mail on each party who has appeared in the action so that it is received by them promptly after service on the witness.
For an Information Subpoena, follow the above procedure, or:
- Place a copy of the Subpoena, together with an original and copy of the questions to be answered in an envelope addressed to the witness.
- Include a self-addressed, stampede envelope for use by the witness returning the answered questions to you.
- Mail the envelope to the witness by Certified or Registered Mail, Return Receipt Requested.
Fees for Service
When served with a Subpoena to Testify or a Subpoena for Records, the witness must be paid a witness fee of $15.00 per day. If the witness is served outside the City of New York, s/he shall also be paid 23 cents per mile to the place of attendance, from the place where s/he was served, and return. The fee must be paid a reasonable amount of time before the scheduled date. Nonpayment of the witness fee voids the duty to appear.
Note: A subpoena for records must also be served on all parties to the action following CPLR § 2303.
Location
A Subpoena from the Civil Court of the City of New York may be served only within the City of New York or in Nassau County or Westchester County. Service anywhere else may only be done if permitted by a Judge.
Restrictions
General
- A Subpoena may be served on a Sunday.
- A City or State agency or a public library may be subpoenaed only by order of the court.
Time
- Any witness must be served a “reasonable” amount of time prior to the date of appearance. It is suggested that service be at least 5 days before the date of the hearing.
- A City or State agency or a public library must be served at least 24 hours prior to the time of appearance.