What is the penalty for not complying with a subpoena to appear at trial in a civil lawsuit in New York?

 

A: First, a subpoena is an official looking court document that is served on the person whom we want to appear at trial at a specific date and time. The subpoena has all sorts of penalty clauses in the document if the person who received it does not comply with it.

It's actually a threatening document. It basically says that you are hereby directed to appear at trial in this courthouse on a specific date and time. If you fail to appear, you are subject to a penalty, usually not to exceed $50. In addition, some subpoenas can threaten “Contempt of court,” for not appearing in court.

The actual monetary fine for failing to comply with a subpoena is really insignificant and carries very little bite. However, the contempt of court threat is a much more significant and can carry significant fines and penalties.

An attorney may try to compel an examining doctor into court to give testimony. When the physician fails to show up, pursuant to a subpoena served upon the doctor, the court may get on the telephone with the doctor's office and threaten all sorts of repercussions if the doctor fails to appear. The court threat carries significant weight regardless of whether the threat is actually carried out.

The real purpose of compelling a witness to appear at trial is to give testimony either in favor or against a particular party. Since we live in a civilized society, we expect the citizens of our state to abide by the rules and the rule of law. When a witness receives a call from a Judge of the Supreme Court of the State of New York, it is actually quite intimidating. It becomes even more intimidating if that call is backed up by a threat that the witness will be placed in contempt of court for failing to appear. Anecdotally, there have been instances where a Judge will threaten to send a Sheriff to the doctor's office to bring him (or her) into Court. [I have yet to see any Judge actually do that in a Civil lawsuit in NY.]

The entire goal is to coax a reluctant witness to appear in court and give testimony. Whether that testimony will be favorable or hostile is an issue that can only be determined at the time that witness is questioned.

You should know that there are specific distinctions between a 'court ordered' or 'judicially ordered' subpoena compared to a subpoena that is simply signed by an attorney. In situations where we need to obtain medical records or medical records from  municipal hospitals or municipal agencies, the law requires us to have the court sign a subpoena and then serve it upon the hospital or agency so they can comply with a formal court request.

The civil practice law and rules (CPLR) of New York permit an attorney, as an agent of the court, to sign a subpoena requesting records or to compel a person to appear at trial. That type of subpoena does not have the same type of judicial bite as one that is signed by a judge.

Gerry practices law exclusively in the State of New York. Within New York he practices primarily in the following counties: New York, Brooklyn, Queens, Bronx, Staten Island, Nassau and Suffolk. Technically, Brooklyn is known as "Kings County," and Manhattan and New York City are known as "New York County." Staten Island is known as "Richmond County." These counties make up the New York metropolitan area.