by Kenny Schaeffer
Tenants with cases in Housing Court have subpoena power.
This means you have an absolute due process right to issue subpoenas for relevant evidence or testimony from third parties or even your adversary. Here are a few practical pointers on when a subpoena is useful and how to prepare one.
Who to subpoena
By law, you can subpoena any person or office which has relevant information about your case.
Most often, subpoenas are used to obtain records from government agencies. Tenants in private buildings will most often need records from the state Division of Housing and Community Renewal (DHCR), which regulates rent-controlled and rent-stabilized apartments, and the city's Department of Housing Preservation and Development (HPD), which maintains a list of 3 million housing-code violations (and does little else in the way of enforcement). It also manages city-owned buildings. Tenants living in public housing, Section 8 or other federally assisted housing may need records from the state Department of Social Services, the city's Human Resources Administration, the New York City Housing Authority, or the federal Department of Housing and Urban Development (HUD).
You can also subpoena companies and corporations that may have records important to prove parts of your case, such as the telephone company, electric company, or a bank.
A subpoena can also be used to compel the testimony of witnesses who have knowledge about the claims the tenant has raised in the case, but might not come to court just because you ask them. Usually people who work will appreciate or require a subpoena, in order to convince their boss that they have to take time off.
How to prepare a subpoena
Subpoenas can be prepared using Blumberg's legal forms, which are available in some stationery stores near courthouses. They are pretty straightforward to fill out, but if you are unsure, check with the court clerk, the information tables provided by the City-Wide Task Force on Housing Court, or a housing advocate.
To fill out a subpoena form, you simply fill in the appropriate blanks. First fill out the "caption" of the case, which will include the name of the petitioner (the one who brought the case, which is the tenant in a housing preservation (HP) or illegal-lockout case, and the landlord in a nonpayment or holdover case), the name of the respondent, or party being sued, as well as the index number and the county the case is in.
You will have to fill in the identity of whoever is being sued, the date and place the case is next scheduled, and a description of any records the witness is required to bring. Always use the phrase "original or certified copies of ."
A subpoena requiring someone to bring some record to court is called "duces tecum," Latin for "bring it with you." A subpoena simply asking someone to come to court as a witness is called "ad testificandum."
You must get a judge's signature if you are subpoenaing a government agency (such as HPD violation reports for your building, DHCR documents regarding an overcharge or service-reduction complaint, or NYCHA tenancy records). If your case has already been assigned to a particular judge, bring the subpoena to that judge. If it hasn't, bring it to the clerk's office. If you are not subpoenaing a government agency, you do not need the judge's signature or permission.
The Blumberg subpoena forms were printed for use by attorneys, but the 90% of tenants who go unrepresented have an equal right to use this valuable tool. At the bottom of the form, in the space marked "attorney for ____," a tenant with no lawyer should cross those words out, and write her own name and the word "Respondent" (or, in an HP or illegal-lockout case, "Petitioner").
Serving the subpoena
A subpoena is served by delivering it to whoever is being subpoenaed. If it's a government agency or big company, they will usually have a special office for accepting subpoenas, generally part of their legal department or counsel's office. This information is often available over the telephone.
All subpoenas must be accompanied by a payment of $15.00 to cover the witness' costs. Some agencies will waive this payment.
It is legal to serve a subpoena on an opposing party in court, so long as it is not done in a manner that creates a disturbance.
After the subpoena is served
On the return date of the case, which will also be the return date of the subpoena, any witnesses you subpoenaed should be in the courtroom at the time indicated.
If records were subpoenaed, they will be left in the clerk's office. The judge must sign a form authorizing the party who issued the subpoena to get the records from the clerk's office, or to see them if the court officer has been sent to retrieve them.
The subpoenaed original or certified documents are now suitable to introduced as evidence. Whenever a relevant point arises and it is the tenant's turn to proceed (whether testifying herself, calling a witness, or cross-examining one of the landlord's witnesses) the tenant should simple offer the document into evidence as an "exhibit."
If the subpoenaed records are not produced, the tenant should state on the record that his right to trial has been impeded.
He should ask to make an offer of proof of what the subpoenaed records would have shown; the purpose of this is to make the record clear that the subpoena was important to the determination of the case.
If a subpoena has not been obeyed, the tenant should ask the court to clarify the consequences before the case proceeds further. In many cases, it may be possible to proceed without it, as long as the judge agrees that the case will be kept open and continued to another day, in order to give the tenant a chance to compel production of the missing witness or document by making a contempt motion.
If an important subpoenaed witness or document is not produced, and the court decides the case before allowing the tenant an opportunity to compel compliance with the subpoena, this may constitute grounds for an appeal.
When to subpoena
Legal tactics depend on the facts of the individual case and cannot be prescribed generally. That said, subpoenas are most useful if there are documents which are necessary to support your position in the case and you do not have original or certified copies of them. Subpoenas can be used to compel witnesses to come to court, but a reluctant witness may not remember events in the way you hope. Friendlier witnesses may still require a subpoena in order to be free to leave their jobs.
The above information is general, and readers of this column will know that every case is, to some extent, unique. It is often necessary to discuss the particular facts of a case with an experienced advocate in order to know what tactics are appropriate. A lawsuit, after all, must be resolved consistent with the tenant's other immediate and long-term needs and goals.