§ 2302.Authority to issue.

The Committee has revised this measure to make clear that in the absence of a patient’s authorization a trial subpoena duces tecum seeking the production of medical records may be issued under CPLR 2302(b) by a court, but not an attorney, and that CPLR 3122, requiring a patient’s authorization, applies only to subpoenas issued during discovery.

In 2002, on the Committee’s recommendation, CPLR 3122 was amended, together with several other related CPLR provisions, CPLR 2305(b), 3120, and 3122-a , to make it easier to obtain discovery documents from a non-party witness and admit them into evidence. L. 2002, c.575. The legislation eliminated the requirement that a party seeking documents from a nonparty witness obtain a court order and a new, less cumbersome procedure was substituted. Among the changes made to CPLR 3122, which governs objections to and compliance with disclosure requests, was the inclusion of language at the request of the Medical Society to protect non-party physicians who were served with disclosure subpoenas seeking medical records. Language was inserted in CPLR 3122 in 2002 to help protect medical providers from unwittingly violating the physician-patient privilege by releasing medical records sought by a subpoena without a patient’s authorization.

Shortly thereafter, a judge in Richmond Civil Court in Campos v. Payne, 2 Misc.3d 921,766 N.Y.S.2d 535 (2003), held that the limitations imposed by CPLR 3122 left him without authority to order the production of medical records pursuant to a trial subpoena on the eve of trial without the patient’s signed authorization. We understand that Campos is now widely followed. It was not the Committee’s intent in recommending the amendment of CPLR 3122 that the requirement for such an authorization apply to trial subpoenas and we do not believe the Legislature had that intent in adopting the Committee’s recommendation. The Committee believes the result in Campos is inadvisable as parties and the court need to have the ability to obtain relevant records (including medical records) so that the parties’ claims and defenses can be fairly adjudicated.

This measure addresses the concerns of medical providers that they may be violating the Health Insurance Portability and Accountability Act (“HIPAA”) by releasing a patient’s medical records absent a court order by making it clear in the article governing subpoenas that, if a patient has not authorized the release of medical records, then a subpoena duces tecum for medical records may be issued only by a court and not by an attorney. The Committee recommends that CPLR 2302(b) be amended by adding a sentence providing that absent an authorization a subpoena for medical records may be issued only by a court.

Under the current language of CPLR 3122 and the ruling in Campos v. Payne there is some question whether a court may “so order” a trial subpoena duces tecum for medical records when the plaintiff has refused to authorize the release of the records. The proposed amendment to CPLR 3122(a) resolves that uncertainty by making it clear that the requirement for an authorization is not applicable to a trial subpoena issued by a court. The amendment is consistent with HIPAA, which provides that “protected health information” may be released without an authorization in response to an order of the court. 45 C.F.R. 164.516 (introductory paragraph) and 164.516(e)(1)(i).

The Committee recommends that CPLR 2302(b) be amended to permit a New York City Civil Court judge to compel the attendance of an incarcerated person in connection with trying a CPLR 325(d) case. It has been brought to the Committee’s attention that, occasionally, New York City Civil Court judges, presiding over a Supreme Court case which was removed pursuant to CPLR 325(d), need to subpoena an incarcerated person – usually a witness.

A Supreme Court justice has authority to compel the attendance of a prisoner pursuant to a writ of habeas corpus under CPLR 7002, but other judges do not. To insure that other types of judges with more limited jurisdiction are able to do so, subdivision (d) of CPLR 2302 permits a Court of Claims, Surrogate’s Court, or Family Court judge to do so. However, that provision does not include New York City Civil Court judges.

Since the need for an incarcerated witness or party to testify in a CPLR 325(d) case in Civil Court may be every bit as legitimate as the need for an incarcerated person to testify in those other courts, the Committee recommends that CPLR 2302(b) be amended to permit judges of the New York City Civil Court to subpoena an incarcerated person in such cases.

2004 Recommendations of the Family Court Advisory and Rules Committee:

Child support and paternity matters account for a significant portion of the work of the Family Court 48% of new case filings (343, 570 out of a total of 712, 726 cases filed) in calendar year 2003, a figure that has risen dramatically during the past dozen years. *This enormous caseload could not be handled without the invaluable assistance of expert support magistrates, who are well-versed in the federal and state law and regulations in this esoteric area. However, several ambiguities in the statutory framework and, in some instances, outright limitations on the authority of the support magistrates cause fragmentation of the cases, thus impeding the expeditious, comprehensive resolution of these important matters.

The Family Court Advisory and Rules Committee, therefore, is proposing a measure that would greatly facilitate the adjudication of issues and enforcement of orders by support magistrates. Specifically, the proposal amends the Civil Practice Law and Rules and Family Court Act to clarify that Family Court support magistrates, not only judges, would be authorized to determine motions to quash child support subpoenas issued by local Support Collection Units, issue subpoenas duces tecum and adjudicate contested paternity proceedings (with the exception of cases involving issues of “equitable estoppel”). Included in the authority to issue subpoenas duces tecum is a clarification of the support magistrates’ power to direct the New York State Department of Correctional Services and local correctional authorities to produce incarcerated parties or witnesses necessary to the litigation of support and paternity matters. **Section 439 of the Family Court Act specifically accords subpoena powers to support * In 1990, 250, 847 child support, paternity and interstate support petitions were filed, 46 percent; of the total of 540, 209 petitions files statewide. Between 1990 and 2002, the 37 percent; increase in child support, paternity and interstate support filings outpaced the 32% increase in overall filings statewide.

** It should be noted that some appearances by prisoners have been obviated by the enactment of chapter 75 of the Laws of 2000, which permits testimony to be taken by telephone, audio-visual or electronic means.

magistrates, a provision that supersedes the Civil Practice Law and Rules by virtue of section 101 of the Civil Practice Law and Rules and section 165(a) of the Family Court Act. Nonetheless, the reference in subdivision (b) of section 2302 of the Civil Practice Law and Rules solely to Family Court judges has caused some confusion.

Additionally, in order to expedite enforcement of child support orders by permitting prompt confirmation hearings by judges, support magistrate willfulness determinations that include recommendations for incarceration would explicitly not be subject to the 30-day objection process, but would have no force or effect until and unless confirmed by Family Court judges. Accord, Roth v. Bowman, 245 A.D.2d 521 (2d Dept., 1997); Cf., DeBettis v. Gates, 247 A.D.2d 844 (4th Dept., 1998); Livingston Co. Dept. of Social Services o/b/o Lisner v. Grimmelt, 254 A.D.2d 834(4th Dept., 1998); Geary v. Breen, 210 A.D. 2d 975 (4th Dept., 1994). In order to eliminate the ambiguity that caused an earlier version of a similar proposal to be vetoed by the Governor in 2003, the proposal has been revised to clarify that only those support magistrates willfulness determinations that include a recommendation for the sanction of incarceration need to be referred for confirmation by a judge, since support magistrates are authorized to impose lesser sanctions than commitment. See Governor’s Veto Message #155 (S 3600). See also Proposal #12, infra.

Each of these provisions will enhance the ability of support magistrates to address child support proceedings in an integrated, rather than a fragmented, manner. Logic dictates that challenges regarding Support Collection Unit-generated subpoenas should be addressed by support magistrates, who already have or will hear the cases as a whole, and would, therefore, be better able to provide prompt relief. Finally, affording support magistrate clear authority to adjudicate the vast majority of contested paternity matters, other than those involving issues of collateral estoppel, will further the goal of compliance with federal mandates to expedite the establishment of paternity and the adjudication of child support.

Under subd (a) of this section, the persons authorized to issue subpoenas in judicial proceedings are the same as under former law.

Formerly, under CPA § 406, the chairman or a majority of a board could issue subpoenas. Subd (a) of this section allows any member of a quasi-judicial body, in certain circumstances, to issue subpoenas. It is to be noted that a number of statutes grant the power to issue subpoenas to every member of a board. See, e. g. Civ Serv Law § 6(4); Gen City Law § 7; Soc Welfare Law § 19(3). These provisions remain unaffected. Subd (a) of this section does not grant power to nonjudicial bodies to use discovery devices. It merely permits them to issue subpoenas ad testificandum and duces tecum to obtain evidence in hearings they are otherwise authorized to bring, relieving them of the necessity of asking a court to issue the subpoena. The subdivision has been changed since the original draft to express more clearly its purpose to permit lawyers to issue subpoenas in arbitration and quasi-judicial proceedings and to permit any member of a quasi-judicial body, in certain circumstances, to do the same.

The first part of the first sentence of subd (b) consolidates and expands the situations covered in CPA §§ 410, 412 and RCP 162. Wherever a transcript or copy is admissible it is because of a policy against compelling production of the original. The consolidation of the rules of evidence in article 45 deals with the portion of CPA § 410 relating to certain public records, CPA § 412, governing production of hospital and municipal records, and of RCP 162, concerning papers of library associations and public departments. The latter part of the first sentence of this subdivision continues the requirement of a court order for the production of a prisoner as a witness. The absolute prohibition in former CPA § 418 on production of prisoners under sentence of death is not continued. Similarly, no distinction is made, as was formerly the case, on the basis of the crime for which the person is imprisoned, this being a factor to be considered by the judge in his decision on the motion for the order. CPA §§ 416 and 417, which limited jurisdiction and venue in applications to produce prisoners, have been omitted. No change from former practice is intended by the omission of § 419 of the CPA, which provided for remand of the prisoner after his testimony is completed. The second sentence provides that notice will be given to the person having custody of the record, document or person confined unless the court orders otherwise. The last sentence restricts somewhat the class of judges who could make the order under former CPA § 415.

Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd, L 1962, ch 318, § 8; L 1964, ch 519, § 1; L 1980, ch 77, § 1; L 1982, ch 139, § 1, eff June 1, 1982; L 1989, ch 183, § 1; L 1997, ch 398, § 56, eff Jan 1, 1998; L 2004, ch 336, § 4, eff Nov 8, 2004; L 2007, ch 136, § 1, eff July 3, 2007; L 2011, ch 307, § 1, eff Aug 3, 2011.