Case of the Day: Genger v. Genger
Posted on January 8, 2016
The case of the day is Genger v. Genger (N.Y. Sup. Ct. 2015). There were two related actions involving Orly Genger and Sagi Genger. Presumably they had a family dispute of some sort, though the opinion doesn’t give details of the underlying dispute. In one of the actions (call it “Action 1”), Sagi Genger attempted to serve a subpoena on “his close friend and attoreny,” David Parnes, who lived in Israel, by mailing the subpoena to Parnes’s lawyer in Israel. The subpoena called for Genger to testify in New York on April 16, 2015. Genger appeared on that date to testify, and while he was in New York, Orly Genger served him with a subpoena seeking his testimony in the second action (“Action 2”). Sagi Genger moved to quash the subpoena on the grounds that Parnes, who had come to New York to testify in Action 1, was immune from service of process. The judge initially denied the motion, but Parnes then appealed and sought a stay pending the appeal.
The judge went further than Parnes asked and reversed her earlier decision. Under New York law, “one in attendance in court outside the jurisdiction of his residence is immune from service of civil process while attending court.” The term “civil process” includes subpoenas, the judge correctly held. For a bit of historical perspective:
The subpoena was anciently and originally a process in the courts of common law, in order to bring in a witness to attest the truth, and it is a summons to the party, under a penalty, to appear and give his testimony. This process was therefore taken up by the High Court of Chancery, where a man was convened to answer upon oath, as to the truth of the plaintiff’s allegations, because it was the nearest process that was used in case of attestation by the common law.
1 Harrison, Practice of the Court of Chancery 154 (Philadelphia 1807).
Anyway, the main question was whether Parnes’s appearance in New York was voluntary, because a witness only has immunity from process if he comes to the jurisdiction voluntarily. The purpose of immunity here is to avoid creating disincentives for witnesses who otherwise would come to testify, but if the witness is legally required to come and testify, then the question of incentives and disincentives is beside the point. Orly Gagner argued that Parnes’s appearance was not voluntary but rather was pursuant to the subpoena. But of course, mailing a subpoena from New York to Israel has no effect: a subpoena cannot compel someone who resides abroad to come to the jurisdiction. Since the subpoena had no effect, Parnes’s appearance was voluntary, and as a result he was immune from service of the second subpoena.