Thomas E. Walsh, II, Esq. Assistant County Attorney, Rockland County
You have asked whether a county may honor an information subpoena or a restraining notice served upon it without an order by a judge of a court of competent jurisdiction.
A restraining notice may be served upon any person except the employer of a judgment debtor where the property sought to be restrained consists of wages or salary due or to become due to the judgment debtor (CPLR, §5222[a]). The notice may be issued by the clerk of the court or the attorney for the judgment creditor as officer of the court.
At any time before a judgment is satisfied or vacated, a judgment creditor may compel disclosure of all matters relevant to the satisfaction of the judgment by serving a subpoena upon any person (id., § 5223). No court order is needed for service of a subpoena (Siegel, Practice Commentary, CPLR, § 5223 [C5223:1]). The subpoena may be issued by the attorney for the judgment creditor (ibid.).
We conclude that a court order is not required for the service of a restraining notice under section 5222 of the CPLR or of a subpoena under section 5223 of such law.
We note that restraining notices and subpoenas may be served on any person. The term person is not defined for purposes of sections 5222 and 5223 of the CPLR. The General Construction Law defines person as including a corporation and a joint-stock association (§ 37). Municipal corporations are within this definition of person (Ackert vCity of New York, 156 App. Div. 836 [1st Dept, 1913]; Matter of Villageof Bronxville v Francis, 206 Misc. 339 [Sup Ct, Special Term, Westchester Co, 1954]). We note that section 5222(a) of the CPLR, by its terms applies to the state, suggesting a broad definition of the term person.
We conclude that a restraining notice under section 5222 of the CPLR or a subpoena under section 5223 of such law may be served on a county without a court order.
The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office.