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Posted: October 31, 2015

Witness in New York Pursuant to Subpoena Immune from Service in Related Action

On October 22, 2015, Justice Jaffe of the New York County Supreme Court issued a decision in Genger v. Genger, 2015 NY Slip Op. 25356, quashing a subpoena served on a witness who was in the jurisdiction pursuant to a subpoena in a related action.

In Genger, the witness–a non-party–was testifying at the trial of a related action pursuant to a trial subpoena when he was served with a deposition subpoena. Despite denying the defendants’ motion to quash the subpoena, the trial court granted the witness’s motion to stay enforcement of the subpoena, explaining:

It has long been held that one in attendance in court outside the jurisdiction of his residence is immune from service of civil process while attending court. The purpose of the rule is to encourage voluntary attendance upon courts and to expedite the administration of justice.

Civil process has been deemed to include the service of a subpoena. Most case law addressing a nondomiciliary’s immunity from service does not distinguish service of a subpoena from service of a summons, regardless of the result. Moreover, in 1974, the First Department reiterated the observation of the Court of Appeals in Chase Natl. Bank v. Turner, 269 NY 397, 400 (1936), that the case law reflected a tendency not to restrict but to enlarge the right of privilege so as to afford full protection to parties and witnesses from all forms of civil process.

AABCO is not to the contrary. There, a nondomiciliary judgment debtor, while in New York to testify in a case unrelated to the judgment against him, was served with a subpoena pursuant to CPLR 5224. Citing the dissent in DuPont, 46 AD2d 369, the Court affirmed the motion court’s denial of the judgment debtor’s motion to quash the subpoena, distinguishing and overruling DuPont to the extent that it could be read to hold that a CPLR 5224 subpoena may not be served on a judgment debtor while voluntarily attending court in an unrelated proceeding. The AABCO Court thus did not distinguish between the service of a subpoena and the service of a summons.

By contrast, in Bartwitz, the court observed that because the historical purpose of granting immunity was to encourage nondomiciliaries to participate in judicial proceedings in New York without possibility of being exposed to additional liabilities, compelling a nondomiciliary’s testimony by subpoena, does not advance this policy. . . .

Consequently, the weight of authority favors [the witness] on this issue, especially given the interest in enlarging the privilege so as to afford full protection to parties and witnesses from all forms of civil process.

(Internal quotations and citations omitted) (emphasis added).

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