In the New York State Appellate Division, subpoenas are most often used when an appellant chooses to perfect an appeal under the “Appendix Method.” An Appendix is essentially an abbreviated version of the full Record on Appeal. Because of this, when proceeding under the Appendix Method, the appellant must ensure that the Appellate Division receives the complete lower court file.
To facilitate that transfer, the appellant must file a subpoena in the county court that issued the order being appealed. For example, if an appeal is taken to the Appellate Division, First Department, from an order issued in New York County, the subpoena must be filed in New York County. The County Clerk’s Office is then responsible for transmitting the complete Record to the First Department. In appeals perfected under the Appendix Method in the Appellate Division, First or Second Department, if the Record has not yet been transferred by the time the appellant is ready to file the Appendix and Brief, the Appellate Division clerk will request a copy of the filed subpoena.
A filing fee is required for the subpoena, and both the amount and payment procedures vary by county. Most counties charge a fixed, nominal fee payable by an attorney’s check. However, Bronx County requires payment in cash, and the fee varies depending on the size of the Record being subpoenaed. On average, the cost ranges from $20 to $30.
The procedure differs in the Appellate Division, Third, and Fourth Departments. In these two Courts, their rules do not require a subpoena be filed with the lower courts. Instead, the appellant must file a digital copy of the complete Record on Appeal along with the Appendix.
Please feel free to contact PHP and ask to speak to any of our knowledgeable staff with any questions regarding this process.