In the New York State Appellate Division, subpoenas are most commonly used when the Appellant elects to perfect an appeal using the “Appendix Method.” Essentially, an Appendix is an abbreviated version of a Record on Appeal. Therefore, when perfecting an appeal using the “Appendix Method,” it is the Appellant’s responsibility to ensure the Appellate Division has a complete copy of the lower court file. In order to effectuate such a transfer of the file, the Appellant must file a subpoena with the County Court which produced the Order they are appealing from. For instance, if the Appellant is perfecting an appeal in the Appellate Division, First Department from an Order originating in New York County, the subpoena must be filed in New York County. It is then the responsibility of the New York County Clerk’s Office to transfer the complete Record to the First Department. When perfecting an appeal using the Appendix in either the First or Second Departments, if the complete Record has not yet been transferred by the time the Appellant is ready to file the Appendix and Brief, the Clerk of the Appellate Division will request a copy of the filed subpoena.
There is a fee associated with filing a subpoena and the amounts and processes may vary from County to County. Most of the fees are fixed (and nominal) and must be paid with an attorney’s check. However, Bronx County requires cash and the charges vary depending on the size of the Record that is being subpoenaed. On average, the fee will be between $20 and $30.
The process to perfect an appeal using the “Appendix Method” in the Appellate Division, Third and Fourth Departments is quite different. In addition to filing the Appendix, the Appellant is required to reproduce and file one complete copy of the Record on Appeal. No subpoena is required.