Legal Question in Civil Litigation in New York

I have been named a co-defendant in a civil action. I did not respond to the summons, and dont plan to. The costs to challenge the case are too much, (2500.00 to get in and anywhere from 12-20000 to finish, with a likely guilty verdict) versus the cost of bankruptcy. My lawyer told me that I already have defaulted. However I was given a subpoena to give testimony in the discovery phase. The question is if I defaulted why am I still a defendant in need of being subpoenaed(sp?)? Also one of the members of the plantiff LLC served me with the subpoena, doesn't that invalidate the subpoena, requiring them to serve me again in a valid manner?

Asked on 4/16/13, 8:42 am

1 Answer from Attorneys

David Simon Hogan & Rossi

Whether you have appeared in an action or defaulted, or are a party to the action or a nonparty, the appearing parties to the action can still subpoena witnesses to testify at trial and/or at depositions. You still have to comply with the subpoena. The only difference is that if you appeared in the action, the Court would order you to appear for a deposition without the need for a subpoena.

As to the service issue, a subpoena must be served in the same manner as a summons. Also, the individual serving the subpoena must not be a party to the action. Here, you are saying the LLC is a party to the action, but it sounds like the individual member is not an actual party. If that's the case, service may be good. You should consult an attorney prior to disobeying any subpoena as you could be held in contempt of court and be liable for a fine and the costs of the party attempting to subpoena you, or possibly worse. In that case, the procedure would be a motion to quash the subpoena, but if the only issue is service, then nothing will prevent the party from re-serving you properly and moving on from there.

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Answered on 4/16/13, 8:58 am

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