§ 2308.Disobedience of subpoena.

Subd (a) of the section embodies the same sanctions as former CPA § 405. The former law permitted the person injured to bring separate actions for the forfeiture of fifty dollars and for the damages caused; under this subdivision he must combine his actions. The disobedience of a subpoena issued by order of the court is treated like disobedience of any subpoena issued by judicial officer. This eliminates the need for special provisions for recalcitrant wardens prescribed in former CPA § 420. Since this subdivision covers all judicial subpoenas it adds sanctions to those in former CPA § 801, which made disobedience of a subpoena issued in supplementary proceedings a contempt only. Incorporated in the subdivision is the explicit commitment procedure of former CPA § 406. This incorporation was made at the request of the State Commission of Investigation and the Waterfront Commission, which relied upon the former provisions. It is intended that the procedures formerly utilized by such commissions not be affected by the new CPLR.

Unless a different set of enforcement provisions is found in the substantive law applicable to an agency, the sanctions in subd (b) apply. Statutes in the consolidated and unconsolidated laws providing for court aid in enforcement have been amended to make their new referent clear.

The compulsion authorized by this subdivision is a two-step process. If the person does not obey the nonjudicial subpoena, the issuer moves for a court order of compliance. From this point on, with the exception of the sanction of costs levied to prevent the witness from waiting to answer until a court order is obtained, the procedure exactly parallels that applicable to a judicial subpoena. The striking of pleadings, being inapplicable, is omitted. This procedure is derived from the New Jersey rules. It does not differ markedly from the Massachusetts or Virginia practice. A number of provisions for court enforcement of the subpoenas of administrative agencies are somewhat similar. Former CPA § 406(2) provided for similar penalties, except that contempt was inapplicable because there was no provision for a court order of compliance.

Omitted completely from this provision is former CPA § 406-a, covering witnesses at legislative hearings and providing penalties of up to $100,000. This highly particularized statute, if at all warranted, would be more appropriate in the Legislative Law as an alternative procedure. Former CPA § 408, which related to discharge of a witness under arrest, was more appropriately treated by insertion of § 27 of the Civil Rights Law. Under the first sentence of the subdivision, the motion need not be made in the Supreme Court if the subpoena was issued in an action pending in another court. The explicit commitment procedure of CPA § 406 was incorporated in the subdivision.

This bill would remedy certain problems connected with non-judicial subpoenas by amending CPLR 2308(b).

According to CPLR 2302(a), the attorney for a party appearing before an administrative board, or a member of any administrative board, may issue a subpoena to compel the attendance of witnesses or the production of documents at a hearing before such a board.

CPLR 2308(b) provides that if a non-judicial subpoena is not obeyed, the issuer may move in the Supreme Court to compel compliance.

The problem arises when a non-judicial subpoena issued by a member of an administrative board on behalf of a litigant is disobeyed. The party on whose behalf the subpoena was not being the issuer, has no standing to initiate compliance proceedings, and can be seriously prejudiced in the conduct of proceedings if the administrative agency declines to enforce its own subpoena (W-K-M, N.Y. Civ. Prac. ¶2308.10). The statute also creates practical problems for the administrative board, in that it imposes a duty to move to compel compliance, when the real party in interest is the litigant who initially requested its issuance.

Matter of Nelson v. Biderman, 43 Misc. 2d 132 (Sup. N.Y. 1964), held that a party appearing before an administrative board without an attorney could enforce a subpoena issued by the board on his behalf. This is only a partial solution. The Advisory Committee is of the opinion that the matter should be regulated by a statutory provision of general application. Therefore, the law should be amended to provide that the party upon whose behalf the subpoena was issued may move to compel compliance.

Many of the fines and penalties originally set forth in the CPLR when it was enacted in 1962 have become woefully inadequate. One of the most important of the penalties set forth in the CPLR is that for failure to obey a judicial subpoena. At present, the most a judge can assess someone who fails to comply with a judicial subpoena is $50 — a sum which will not serve as deterrent to anyone much less a well-heeled party.

The Committee recommends that CPLR 2308(a) be amended to make the maximum penalty for disobeying a judicial subpoena $150. This amount was reduced from the $500 recommended in 2004 since legislative counsel felt that it was too high. The proposed $150 fine is at least a slightly more onerous penalty, but not one which will be unduly burdensome for an impecunious party.

Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd, L 1965, ch 231, § 3, eff May 17, 1965; L 1977, ch 25, § 1; L 1997, ch 398, § 59, eff Jan 1, 1998; L 2007, ch 205, § 1, eff Jan 1, 2008; L 2007, ch 601, § 9, eff Aug 15, 2007.