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1-What is the small
claims court?
2-Who can use the small
claims court?
3-Where are the small claims court located?
4-How do I start a small claims case?
5-Must I know the defendant's correct name?
6-What is a counterclaim?
7-Adjournments
8-What should I do at trial?
9-Should I choose a judge or
an arbitrator?
10-Can I choose to go to
mediation?.
11-Are there any jury trials?
Who
can use the Small Claims Court?
Anyone over 18 years of age can bring an
action in Small Claims Court. If you are younger than 18,
your parent or guardian may file the claim for you.
Corporations, partnerships, associations, or assignees cannot
sue in Small Claims Court, but they can be sued.
If you sue in Small Claims Court, you are the claimant
(plaintiff); if you have been sued, you are the
defendant. You can sue more than one defendant in the same
case if necessary.
If you are sued, and you believe that a third party is
responsible for the claim, you may be able to bring that party
into the lawsuit as a defendant. Contact the clerk of the
Small Claims Court for information about a "third-party
action."
A corporation may authorize an attorney, officer, director, or
employee of the corporation to appear to defend a claim.
If you choose, you may be represented by an attorney at your own
expense, but it not necessary to have an attorney since Small
Claims Court is meant to be a "people's court" where
claims may be tried speedily, informally, and
inexpensively. The defendant has the same choice. If
there are attorneys on both sides, the case may be transferred
to a regular part of the court.
Where
are the Small Claims Court Located?
There is at least one Small Claims
Court in each of the 62 counties in New York State. All
city courts have a Small Claims Part. Town and Village
Courts, in Westchester County, wherein you reside can handle
your Small Claims action. Consult your telephone book for
the address and phone number of your local court for
information.
How
do I start a Small Claims Case?
You or someone on your behalf must come to
the Small Claims Court, to file a statement of your claim.
You should be prepared to give a brief statement of the facts
that form the basis of your claim. Check any documents
relating to your case for the relevant dates and names. If
you are suing on a contract or for property damage, you may
claim interest as well as damages. You must sue in a court
having Small Claims Part in an area where the defendant lives or
works or has a place of business.
You will be required to pay filing fee of $10.00 if your claim
is for $1,000 or less and a filing fee of $15.00 if your claim
is for more than $1,000.
When the claim is filed, the clerk will tell you when the case
will be tried. The clerk will then send the notice of
claim to the defendant by both certified mail and ordinary first
class mail. The notice of claim tells the defendant when
the case will be tried and gives a brief statement of your claim
and the amount of money you are seeking. If the copy of
the claim sent by ordinary mail is not returned as undeliverable
within 21 days, the defendant is presumed to have received
notice even if the claim sent by certified mail has not been
delivered.
If the notice is not delivered by the post office, the court
will set a new trial date and tell you how to arrange for personal
service of the notice of claim on the defendant. Personal
service may be made by any person (including a friend or a
relative) who is 18 years of age or older, except that you or
any other party to the action may not serve the notice of claim.
If the service of the notice cannot be made upon the defendant
within four months of the date when the action was first
started, the action will be dismissed without prejudice to your
bringing the action at a later time.
A Small claims case will not proceed to trial until the
defendant has been served with a notice of claim.
Must I know the
defendant's correct name?
When filing a Small Claims case, the
claimant must provide the name and address of the person or
business being used. If you do not know the correct legal
name of the defendant, you can sue using any name under which
the defendant does business. However, you should go to
the office of the County Clerk in the county where the
business is located to find out who owns the business and
the legal name of the business. The County Clerk's
office keeps a record of the names under which businesses are
operated.
If you discover the defendant's correct "legal" name
before the trial date, return to the Small Claims Court and have
the case papers changed to the correct name of the
defendant.
What
is a counter claim?
Sometimes the defendant may have a claim
against the claimant and may counter sue the claimant in the
same case. This is known as a "counterclaim" and
it can be made up to $3,000 in money damages. The
defendant must come to court prepared to prove the
counterclaim. You have the right to reply to a
counterclaim but are not required to do so.
The defendant is required to file his or her counterclaim with
the court within five days of receiving your notice of claim and
must pay the court a fee of $3.00 plus the cost of mailing the
counterclaim to you. If the defendant fails to file a
counterclaim within the five-day period, the defendant may still
file the counterclaim until the time of the hearing. The
judge then may either proceed with the hearing or adjourn the
hearing for a short period of time. However, if the
defendant did not file the counterclaim within the five-day
period, the judge must adjourn the hearing to a later date if
you so request.
If you receive notice of a counterclaim against you, contact the
Small Claims Court to see what procedures you should
follow. Be prepared to try both your own case and the
counterclaim at the time of your hearing.
Any claim or counterclaim for more than $3,000 may not be
brought to a Small Claims Court; it must be brought in another
part of the court or in another court.
Adjournments
Adjournments Small Claims Court are discouraged. Only the
judge can decide if an adjournment is to be granted.
If you are going to ask for an adjournment, you should notify
the other party in advance. Either you or someone else on
your behalf should appear in court to explain to the judge why
you cannot be ready for trial. Some courts permit
adjournments to be requested by mail or by telephone, and you
should contact the court to find out the method of
adjournment. If you do not have a good excuse, your
request may be denied and, if you are not ready to go to trial,
your case may be dismissed, or, if you are the defendant, an
award may be made without your having been heard.
What
Should I do at trial?
On the date set for trial, you should
arrive at the court before the calendar of cases is
called. Contact the Small Claims Court to find out the
hour at which court begins. If the claimant is late, the
case may be dismissed. If the defendant is late, a default
judgment against the defendant may be granted.
When you arrive, check the Small Claims calendar posted on the
wall outside the courtroom, or with the clerk if there is no
calendar posted, to see that your case is scheduled.
When the clerk calls your case, stand and state your name and
tell the court that you are ready to proceed with your
case. If you are requesting an adjournment, tell the clerk
at that time.
The trial is simple, informal hearing before a judge or
arbitrator.
Should
I choose a judge or an arbitrator?
In Town and Village Courts and in may other courts, only judges
are available t try cases. However, in New York City,
Nassau and Westchester counties, the cities of Buffalo and
Rochester, and some other locations, both judges and arbitrators
are available to try cases.
An arbitrator is an experienced lawyer who serves without
pay. Where arbitrators are used, there usually are many
arbitrators available and only one or two judges. An
arbitrator may try your case, if both sides agree. If you
and the defendant agree to have your case heard by an
arbitrator, the case probably will be heard sooner because there
are more arbitrators than judges.
Do not hesitate to have your case tried by an arbitrator.
He or she will apply the same law to your case as the judge
would apply. The hearing before an arbitrator is less
formal, and you may not be as nervous as you might be before a
judge. When an arbitrator determines a case, the decision
is final and there is not further appeal by either the claimant
or defendant.
Can
I choose to go to mediation?
Yes. There are community dispute resolution centers, under
contract to the courts, available in every county in the
state. There is normally no charge or small filing
fee. Your case will be scheduled quickly at a time and
place convenient to all parties. Matters are confidential
and the process is voluntary. Mediation gives you ample
time to present your position. You take responsibility to
work together on possible solutions with the help of a
professionally trained mediator. A written binding
agreement can be drawn up for both parties. You can locate
your nearest dispute resolution center by checking your
telephone book or by obtaining at Small Claims Court the
brochure on your local dispute resolution center.
Are
there any jury trials?
The claimant in a Small Claims action cannot demand a
jury trial. A defendant, however, may demand a trial by
jury. If a defendant demands a jury trial, the defendant
must pay a jury fee and file a $50.00 "undertaking"
(security) with the court to guarantee the payment of costs that
my be awarded against the defendant. The defendant also is
required to make an affidavit specifying the issues of fact,
which the defendant desires to have tried by a jury, and stating
that such trial is desired and demanded in good
faith. The Small Claims clerk will answer your
questions regarding the procedures for obtaining a jury
trial. Jury trials are held before panels of six jurors.
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