Any lawyer who actually tries accident, injury or malpractice cases knows that one of the biggest pains in the neck is subpoenaing all the necessary witnesses for trial.
One recent change under NY law now permits a subpoena for a Party (or a person under the Party’s control) to be subpoenaed by serving the Subpoena on the Party’s Attorney rather than having to serve it on the actual witness.
Here are my notes on the new NY law on this issue:
EFFECTIVE 1/08 NEW SERVICE OF SUBPOENA RULE F0R A PARTY OR SOMEONE UNDER THE CONTROL OF A PARTY
CPLR §2303-a– can now serve the attorney for the party just like you would serve any other pleading (ie regular mail)
§ 2303-a. Service of a trial subpoena. Where the attendance at trial of a party or person within the party’s control can be compelled by a trial subpoena, that subpoena may be served by delivery in accordance with subdivision (b) of rule 2103 to the party’s attorney of record.
§ 2103(b): (b) Upon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party’s attorney. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made:
1. by delivering the paper to the attorney personally; or
2. by mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is designated, at the attorney’s last known address; service by mail shall be complete upon mailing; where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period; or
3. if the attorney’s office is open, by leaving the paper with a person in charge,
4. by leaving it at the attorney’s residence within the state with a person of suitable age and discretion. Service upon an attorney shall not be made at the attorney’s residence unless service at the attorney’s office cannot be made; or
5. by transmitting the paper to the attorney by facsimile transmission, provided that a facsimile telephone number is designated by the attorney for that purpose. Service by facsimile transmission shall be complete upon the receipt by the sender of a signal from the equipment of the attorney served indicating that the transmission was received, and the mailing of a copy of the paper to that attorney. The designation of a facsimile telephone number in the address block subscribed on a paper served or filed in the course of an action or proceeding shall constitute consent to service by facsimile transmission in accordance with this subdivision. An attorney may change or rescind a facsimile telephone number by serving a notice on the other parties; or
6. by dispatching the paper to the attorney by overnight delivery service at the address designated by the attorney for that purpose or, if none is designated, at the attorney’s last known address. Service by overnight delivery service shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the overnight delivery service for overnight delivery, prior to the latest time designated by the overnight delivery service for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and service is by overnight delivery, one business day shall be added to the prescribed period. “Overnight delivery service” means any delivery service which regularly accepts items for overnight delivery to any address in the state; or *
7. by transmitting the paper to the attorney by electronic means where and in the manner authorized by the chief administrator of the courts by rule upon the party’s written consent. The subject matter heading for each paper sent by electronic means must indicate that the matter being transmitted electronically is related to a court proceeding.
PRACTICE TIP: The smartest thing to do is send it by fax (CPLR 2103(b)(5) and keep a copy of the faxed receipt from your machine. IF YOU DO IT VIA FAX REMEMBER TO ALSO FAX A COPY OF THE WITNESS FEE CHECK AND THEN SEND THE ACTUAL CHECK TO THE ATTY VIA CERT LETTER, RRR
THANKS FOR READING,
JIM REED
jreed@zifflaw.com
