R 5224.Subpoena; procedure.

Section 5223 and subd (a) of this section are derived from parts of CPA §§ 774(4), 775, 779, 782 and 782-a, which related to the manner in which judgment debtors, third parties, witnesses and financial institutions might have been examined in supplementary proceedings. It also replaces subd 3 of § 687-a, which contained an entirely separate procedure, derived from the attachment sections, for disclosure from a debtor of the judgment debtor. Those sections were extremely prolix, they contained numerous inconsistencies and technicalities, and their procedures have proven wasteful of the time of the court, the judgment creditor and the person to be examined. An examination might have been obtained, by subpoena, of the judgment debtor within two years from the “recovery” of the judgment under former § 775(2), and of a third party or witness within two years from the “date” of the judgment under former §§ 779(2) and 782(2). Subd 6 of § 782, however, apparently permitted a subpoena to examine a witness to issue after the two-year period, if an examination of the judgment debtor or a third party was in progress or was concluded less than six months before. An “information subpoena,” for obtaining disclosure from a financial institution by requiring it to answer questions by mail regarding accounts and deposits maintained by the judgment debtor, might only have been utilized “within the time allowed for examination of witnesses under section seven hundred eighty-two.” CPA § 782-a(2). Since § 782 imposed no limitation upon examination by order, the clause quoted apparently referred to examination by subpoena. But, as noted above, § 782 contained two distinct time provisions for examination by subpoena: a two-year provision in subd 2 and a provision in subd 6 determined by the duration of an examination of the judgment debtor or a third party. Even if the time limitation on information subpoenas was clear, its utility might have been seriously questioned, for its expiration only served to prevent the simple letter procedure, for a fee—even if a small one–to the person examined, and left the judgment creditor no alternative but to seek an examination in which appearance with books and records might have been compelled, and transfer restrained, without fee. It should also be noted that subds 2 and 4 of § 774 indicated that the period within which a subpoena might have been served upon the judgment debtor, a third party or a witness, as well as that within which an information subpoena might have been served upon a financial institution, was “two years from the date” of the judgment. This subdivision places no time limit on examination by any type of subpoena. Under it, examination may be had at any time before the judgment is satisfied, vacated or barred by the statutes of limitation. Subparagraph 3 also expands the information subpoena procedure so that it may be used to obtain information from any person and relaxes the former limitation on the questions that may be asked. Although former § 782-a(4) provided for service of an information subpoena by ordinary mail, since failure of the person to whom the subpoena was directed to respond within seven days was punishable as a contempt, expansion of this procedure to other persons dictates a manner of service better calculated to insure actual receipt. Subparagraph 3 of this subdivision requires that if service is not made personally, as with other subpoenas, it be made by registered or certified mail. The requirement that an original and a copy of the questions be enclosed is similar to that of former § 782-a(3)(c) and is designed to enable the person served to keep a record of the event without undue burden. Although answers to information subpoenas need not have been under oath under former § 782-a, subparagraph 3 of this subd adds this requirement. This change should not result in any substantial burden to financial institutions. Indeed, financial institutions, and other third parties, under former practice were frequently permitted by the attorney for the judgment creditor to mail an affidavit in lieu of an appearance, in cases where a subpoena requiring appearance was served primarily to effect the restraint it contained. The requirement of an oath should also impress other persons who may be served with an information subpoena under this subdivision with the importance of answering truthfully. Because of this requirement of an oath, which would necessitate a notarial fee, the fee of subd 4 of former § 782-a has been increased from twenty-five cents to fifty cents. See subd (b). This expansion of the information subpoena procedure, together with the severance of the restraining notice effected by CPLR § 5222, limits a subpoena requiring appearance to its proper use. Accordingly, where a person is served with such a subpoena, he will be actually required to appear for an examination. In that event, unless it is the judgment debtor himself who has been served, the person subpoenaed should be paid witness fees and traveling expenses; there is no sound reason for the former rule that such fees need not be paid if there was “reason to believe” that the third person had property of the judgment debtor. See introduction to this article; notes to subd (b). Service of a subpoena under subparagraphs 1 or 2 of this subdivision would be made, in accordance with § 2303, in the same manner as a summons. Accordingly, subds 1 and 2 of former § 783, which were to the same effect, have been omitted from this article. Similarly, § 2302(a) covers who may issue a subpoena and replaces the many provisions specifying the attorney for the judgment creditor in the supplementary proceedings article of the civil practice act. The phrase “all matters relevant to the satisfaction of the judgment” is new and is designed to change the rule of those cases which have held that examination must be limited to material means for satisfying the judgment. Cf. Estate of Schwartz v Dunishtock, 175 Misc 860, 25 NYS2d 742 (NYC Ct 1941). There is no reason for precluding the judgment creditor from discovering such matters as the judgment debtor’s address, place of employment, number of dependents or other obligations, especially if the witness’ fees are paid as required by subd (b). Each of the subpoenas specified by this subd are captioned in a court in which a proceeding may be brought. See CPLR rule 2101(c), § 5221(b). Unlike the former provisions, service of a subpoena under this article does not itself initiate a separate proceeding. The place of examination is similar to that under former practice, however. See subd (c). The last sentence of the introductory paragraph of this subdivision is designed to make it clear that service of one kind of subpoena does not preclude subsequent or simultaneous service of another. It is limited with respect to repeated examination of the same judgment debtor by subd (f); the fee provision of subd (b) and the protection of the court under § 5239 also operate to keep repeated examinations within bounds. Although many of the former provisions provided for examination by court order, rather than by attorney-issued subpoena, they were only significant when an attorney was prevented from issuing a subpoena because of lapse of time or because of a previous examination. In this section, the time limitation provision has been abolished, and the limits upon repeated examination are handled by requiring fees to be paid all witnesses but the judgment debtor and by requiring leave of court to issue a second subpoena for examination of the judgment debtor. See subds (b) and (f). Therefore, it is contemplated that post-trial examination will be primarily attorney-instigated and attorney-conducted, subject to the power of the court to supervise proceedings or to protect a witness under § 5239. The provision in CPA §§ 782(7) and 783(3) required payment of witness fees at the time of service has been changed to “paid or tendered.” Although CPLR rule 2303 was drafted to require a demand by the witness, the advisory committee, on reconsideration, decided that the language be changed to read as follows (brackets indicate deletions, italics indicate insertions):

A subpoena shall be served in the same manner as a summons. Any person subpoenaed [, upon demand,] shall be paid or tendered in advance authorized traveling expenses and one day’s witness fee.

Subd (b) of this section is based upon parts of CPA §§ 782(7), 782-a(4) and 783(3).

The provision in former § 783(3) that the judgment debtor shall not be entitled to fees is continued in this section. He is protected against harassment by subd (f) and § 5239. The distinctions made in § 783(3) and other sections between witnesses and third parties, however, have been eliminated. Under the former section, fees and traveling expenses were denied to “third parties,” even those who had no intent to impede collection of the judgment, apparently in an effort to minimize the expense of enforcing judgments. On the other hand, “witnesses” were entitled to their fees. CPA §§ 782(7), 783(3). The distinction was not a clear one; an attorney for the judgment creditor might not have known in advance whether a person was a “witness” or a “third party.” A “third party” might actually have had no property belonging to the judgment debtor but so long as the attorney for the judgment creditor alleged that there was “reason to believe” that he had at least ten dollars worth of such property, he could be denied fees. It was not uncommon for a person to be subpoenaed as a “third party,” rather than as a “witness,” solely to avoid fees. While there were restrictions on the questions that a third party could be asked which did not exist for witnesses (see City of New York v Rein, Weinstein Fur Corp. 49 NYS2d 833 (Sup Ct 1944)), the restrictions were seldom observed. Moreover, a prudent attorney was induced to treat all persons as third parties, because a third party order or subpoena contained a restraining provision, while a witness subpoena did not. The last sentence of this subd is based upon a provision of former § 782-a(4), except that the fee has been increased from twenty-five cents to fifty cents to cover the additional expense resulting from the requirement of an oath. See notes to subd (a). The imposition of fees for all third parties should serve to prevent indiscriminate use of supplementary proceeding subpoenas. Fear of such use apparently lead to the former restrictions upon the matters which might have been inquired into. See Estate of Schwartz v Dunishtock, 175 Misc 860, 25 NYS2d 742 (NYC Ct 1941). Those restrictions have been abolished in the new CPLR. See notes to subd (a). Some of the difficulties alluded to in the Dunishtock case could also be alleviated by the expansion of the information subpoena procedure to all third parties. An exception has been added in the last phrase so that municipalities are not required to pay a fee for an information subpoena. Since it was formerly common practice for a municipality to serve a subpoena requiring appearance, and then waive such appearance upon the receipt of an affidavit with the information required, it was the intention of the earlier draft of this provision to replace that practice with the expanded information subpoena. However, the effect of the earlier draft on municipalities would be to require a fee where none had previously been required. Therefore, the exception provision has been added in order to avoid increasing the cost to municipalities of collecting judgments.

Subd (c) of this section is new and replaces parts of CPA §§ 775, 777, 780, 782, 783(3) and 791.

CPA § 783(3) provided that subpoenas should be served “not less than three days nor more than twenty days before the return date.” This subdivision extends the minimum period between service and return date to ten days to afford the witness more time to arrange his schedule and to gather any documents which are required for the examination. It conforms with CPLR rule 3107. The twenty-day maximum limitation served no real purpose; it has been eliminated as unnecessary. The provision regarding persons before whom the examination may be conducted incorporates CPLR rule 3113(a), which relates to disclosure generally. Cf. CPA § 791. Because it specifies the person before whom an examination may be taken within or without the state, it makes unnecessary a provision such as subd 8 of CPA § 782, which incorporated the provisions of CPA Art 29 permitting examinations “of the judgment debtor or any witness” outside the state; the omission of third parties from the quoted phrase is undoubtedly inadvertent. While former § 791 seemingly limited the person before whom an examination might have been conducted by consent, no reason appears why consent could not have been validly given to any time and place and to any person. Former §§ 777, 780 and 782(3) related to the place of examination as well as to the courts in which supplementary proceedings might have been instituted against judgment debtors, third parties and witnesses. That accounts, in part, for their length and complexity. Under former law, a separate supplementary proceeding was usually instituted for each examination. For example, § 774(4) even provided that service of an information subpoena upon a financial institution commenced a proceeding. Under this article, however, this would be unnecessary as post-trial examinations do not alone institute a new proceeding. Rather they are considered to be proceedings in the main action in the same manner as pretrial examinations. In this article, the court in which a proceeding may be instituted is specified in subd (a) of § 5221; under subdivision (b) of that section, this is the court in which a subpoena is captioned. This subdivision specifies the place where an examination may be held. No substantial change in former practice results from this division of provisions. Under former law, an examination within the state must have been held in a courtroom unless the person to be examined consented to its being conducted elsewhere. And, although the statutory subpoena form contained in § 775 provided that the person subpoenaed must have appeared “before one of the justices of our court,” in practice judges were virtually never present at the examination. Most courts have no facilities adequate for the conduct of examinations and the proceedings on an examination ordinarily present an unseemly spectacle not befitting the dignity of the courts. See introduction to this article. Since examinations are largely unsupervised, there appears to be no reason for requiring them to be held in court. Under former law, examinations might have been held by consent at another place before a notary public or commissioner of deed. CPA § 791. That was similar to the practice for pre-trial examinations which need not have been conducted in court. Accordingly, this subdivision utilizes the general disclosure provision of rule 3110 to cover the place of examination within the state. Attorneys would still be able to schedule examinations at court within the proper county under this subdivision and a person subpoenaed would be able to seek a protective order to prevent abuse under § 5239. This article does not appreciably alter the former provisions with respect to the county in which the examination must be held. CPA § 777 required proceedings to be instituted, and hence examinations to be held, in a county where the judgment debtor resided, was regularly employed or had a place for the regular transaction of business in person. If there was no such county in the state, he might have been examined wherever he could be served. The elaborate provisions of § 777, when the particular court requirements are removed, reduced to a preference for the county where the judgment was rendered, if that county was otherwise proper. Sections 780 and 782(3) had similar requirements for the place of examinations of a third party or witness. Rule 3110 when read with § 5221, which specifies the court from which the subpoena is issued, also has similar requirements.

Subd (d) of this section is based upon parts of rules 3113(b), 3113(c) and 3114, which are contained in the general disclosure article. They are set forth here, rather than referred to, for convenience and because minor changes have been made to conform them to post-judgment examination procedure. The provision that either party may be examined as a witness in his own behalf has been deleted. That provision was determined to be inappropriate to enforcement disclosure procedures. The opening of this subdivision indicates that it is not required that the testimony be transcribed, except where the person conducting the examination so requests. Some of the provisions of this subdivision replace parts of CPA § 784. The last sentence of this subdivision is derived from the last sentence of the first paragraph of CPA § 784-a. The remainder of § 784-a is omitted. Its specific provisions for the protection of trade secrets are covered by § 5239.

Subd (e) of this section is based upon parts of subds (a) and (b) of rule 3116, which are contained in the general disclosure article. They are set forth here, rather than referred to, for convenience and because minor changes have been made to conform them to post-judgment examination procedure.

Subd (f) of this section is based upon CPA §§ 775(1), 775(2) and 779(4). Under subds 1 and 2 of § 775, a subsequent examination of the judgment debtor might have been obtained only by court order upon a showing that one year had elapsed since he was last examined in supplementary proceedings or that there was reason to believe that he had or would acquire non-exempt property. Similarly, the provision of subd 1 of § 779, that to obtain an order for the initial examination of a third party it must have been shown that “the judgment creditor or his attorney has reason to believe” that the person to be examined was a garnishee, was apparently to be read into subd 4 of the same section, which provided for a subsequent examination upon a showing that one year had elapsed since the last examination of the third party. In the case of a person examined as a witness, there was no restriction regarding subsequent examinations, apparently because of the requirement for fees. See notes to subd (b). If the subsequent examination was sought within two years from the date of judgment (CPA §§ 774(2), 782(2)) or within six months from the conclusion of an examination of the judgment debtor or a third party (id. § 782(6)), it might apparently have been obtained by subpoena. At any other time, the examination might have been obtained by order upon a showing either that there was reason to believe that the witness had relevant information (id. § 782(1)) or that the examination was “necessary.” Id. § 782(7). This subdivision eliminates all restrictions upon subsequent examination except as to the judgment debtor. The requirement of subd (b) that fees be paid should deter abuse of the examination as to witnesses or third parties; when it does not, the person subpoenaed may apply for a protective order pursuant to § 5239. To prevent undue harassment of judgment debtors, this subdivision restricts examinations with respect to the same judgment; thus, if after examination, the judgment is assigned, the assignee would have to secure leave of court in order to reexamine the debtor unless one year has expired from the conclusion of the previous examination. The last paragraph of subd 2 of former § 775 provided that a judgment debtor might not subsequently have been examined by subpoena, but subd 1 of § 775 provided that subsequent examinations might have obtained by court order upon a bare showing that the judgment was unsatisfied and that one year had elapsed since the last examination. Since the court was not required to exercise judgment or discretion, the requirement of a court order was little more than a useless formality. It was an unnecessary annoyance for judgment creditors and courts. Subd 1 of § 775 also permitted the court to grant a subsequent examination, although one year had not elapsed, upon a showing that there was reason to believe that the debtor had acquired, or was about to acquire non-exempt property. In that case, the court might apparently have exercised discretion in deciding if the showing of “reason to believe” was sufficient, in order to protect the judgment debtor from undue harassment. Accordingly, this subdivision provides that leave of court is only necessary where a subsequent examination is sought within one year after a previous examination. It is understood that an attorney who issues a restraining notice, or a subpoena under this section, may subsequently vacate or modify it in the light of new information. Cf. Polo v Edelbrau Brewery, 185 Misc 775, 60 NYS2d 346 (Sup Ct App T 1949); see notes to § 2104, CPA § 790.

Add, L 1962, ch 315, § 6, eff Sept 1, 1963, with substance transferred from former § 5223(a)(1); amd, L 1963, ch 532, § 30, eff Sept 1, 1963; L 1994, ch 302, § 1, eff July 20, 1994; L 2000, ch 409, § 2, eff Sept 29, 2000; L 2006, ch 257, § 1, eff Aug 25, 2006; L 2006, ch 452, § 1; L 2006, ch 552, § 1, eff Jan 1, 2007; L 2011, ch 342, § 1, eff Sept 2, 2011.