How do I file motion to punish for failure to respond to a subpoena in New York?
Full Question:
Answer:
The New York statutes provide consequences for failture to respond to a subpoena.
§ 2308. Disobedience of subpoena. (a) Judicial. Failure to comply
with a subpoena issued by a judge, clerk or officer of the court shall
be punishable as a contempt of court. If the witness is a party the
court may also strike his pleadings. A subpoenaed person shall also be
liable to the person on whose behalf the subpoena was issued for a
penalty not exceeding fifty dollars and damages sustained by reason of
the failure to comply. A court may issue a warrant directing a sheriff
to bring the witness into court. If a person so subpoenaed attends or
is brought into court, but refuses without reasonable cause to be
examined, or to answer a legal and pertinent question, or to produce a
book, paper or other thing which he was directed to produce by the
subpoena, or to subscribe his deposition after it has been correctly
reduced to writing, the court may forthwith issue a warrant directed to
the sheriff of the county where the person is, committing him to jail,
there to remain until he submits to do the act which he was so required
to do or is discharged according to law. Such a warrant of commitment
shall specify particularly the cause of the commitment and, if the
witness is committed for refusing to answer a question, the question
shall be inserted in the warrant.
(b) Non-judicial. (1) Unless otherwise provided, if a person fails to
comply with a subpoena which is not returnable in a court, the issuer or
the person on whose behalf the subpoena was issued may move in the
supreme court to compel compliance. If the court finds that the subpoena
was authorized, it shall order compliance and may impose costs not
exceeding fifty dollars. A subpoenaed person shall also be liable to the
person on whose behalf the subpoena was issued for a penalty not
exceeding fifty dollars and damages sustained by reason of the failure
to comply. A court may issue a warrant directing a sheriff to bring the
witness before the person or body requiring his appearance. If a person
so subpoenaed attends or is brought before such person or body, but
refuses without reasonable cause to be examined, or to answer a legal
and pertinent question, or to produce a book, paper or other thing which
he was directed to produce by the subpoena, or to subscribe his
deposition after it has been correctly reduced to writing, the court,
upon proof by affidavit, may issue a warrant directed to the sheriff of
the county where the person is, committing him to jail, there to remain
until he submits to do the act which he was so required to do or is
discharged according to law. Such a warrant of commitment shall specify
particularly the cause of the commitment and, if the witness is
committed for refusing to answer a question, the question shall be
inserted in the warrant.
(2) Notwithstanding the provisions of paragraph one of this
subdivision, if a person fails to comply with a subpoena issued pursuant
to section one hundred eleven-p of the social services law by the
department of social services or a social services district, or its
authorized representative, or another state's child support enforcement
agency governed by title IV-D of the social security act, such
department or district is authorized to impose a penalty against the
subpoenaed person. The amount of the penalty shall be determined by the
commissioner of the department of social services and set forth in
regulation, and shall not exceed fifty dollars. Payment of the penalty
shall not be required, however, if in response to notification of the
imposition of the penalty the subpoenaed person complies immediately
with the subpoena.
(c) Review of proceedings. Within ninety days after the offender
shall have been committed to jail he shall, if not then discharged by
law, be brought, by the sheriff, or other officer, as a matter of course
personally before the court issuing the warrant of commitment and a
review of the proceedings shall then be held to determine whether the
offender shall be discharged from commitment. At periodic intervals of
not more than ninety days following such review, the offender, if not
then discharged by law from such commitment, shall be brought, by the
sheriff, or other officer, personally before the court issuing the
warrant of commitment and further reviews of the proceedings shall then
be held to determine whether he shall be discharged from commitment. The
clerk of the court before which such review of the proceedings shall be
held, or the judge or justice of such court in case there be no clerk,
shall give reasonable notice in writing of the date, time and place of
each such review to each party or his attorney who shall have appeared
of record in the proceeding resulting in the issuance of the warrant of
commitment, at their last known address.