| |
Bottom
12-Preparing for
trial.
13-How
is a trial conducted?
14-Disclosure
of assets.
15-What happens if one party
does not appear?
16-Settlements.
17-Can I appeal the case
if I lose?
18-What do I do if I win?
19-How can I
collect my judgment?
20-Locating Assets.
1.
Information
Subpoena
2.
Bank
Accounts & Wages
3.
Real Property
4.
Personal Property
21-
Other enforcement
procedures.
22-
Prominent State licensing or certifying authorities.
23-
Prominent local licensing or certifying authorities.
Preparing
for trial.
1. Evidence
Before trial, you should gather all the evidence necessary to
prove your claim or your defense. Anything that will help
prove the facts in dispute should be brought to court.
This includes photographs, written agreements, an itemized bill
or invoice that is receipted or marked "paid," written
estimates of the cost of the service or repairs, a receipt for
the purchase of an item or the payment of a debt, canceled
checks, and correspondence. If you rely on estimates, two
different written itemized estimates of the cost of the service
or repairs are required. If possible, merchandise that is
in dispute should be brought to court.
Testimony, including your own, is evidence. Any witness
whose testimony is important to your case may testify.
This can be a person who witnessed your transaction or someone
whose special knowledge and experience makes him or her an
expert on the cost of the service or repairs that were provided
or may be required.
You may have to pay an expert witness for his or her time.
2.
Subpoenas
If you are unable to get a witness to appear voluntarily, you
may apply for issuance of a subpoena to the clerk of the Small
Claims Court, who will give you the necessary information.
A subpoena is a legal document that commands the person named in
the subpoena to appear in court. An expert witness may not
compelled to testify by subpoena, but you may pay the expert
witness for coming to court to testify.
You also may apply to the clerk of the Small Claims Court for a
"subpoena duces tecum," which is a legal
document that directs someone to produce a bill, receipt, or
other written document or record you need.
Either party may apply for a subpoena up to 48 hours before a
trial date.
You must arrange for service of the subpoena and the payment of
a $15.00 witness fee and, where appropriate, travel expenses for
the person subpoenaed. Except where the travel is entirely
with a city, a subpoenaed witness is entitled to 23 cents a mile
as travel expense to and from the court from the place he or she
was served with the subpoena. Service of the subpoena may
be done by any person (including a friend or relative) who is 18
years of age or older, except that you or any other party to the
action may not serve the subpoena.
How
is a trial conducted.
The claimant's case is presented first. After being sworn
as a witness, the claimant will tell his or her version of the
incident. All papers or other evidence should be shown at
this time. When the claimant has finished testifying, the
judge or arbitrator or the defendant may ask some questions to
clarify matters. Other witnesses can be presented in
support of the claimant, and they, too, can be questioned by the
judge, or arbitrator, or the defendant.
The defendant then will be sworn and tell his or her side of the
story and present evidence. The defendant also may present
other witnesses. The claimant or the judge or arbitrator
may ask questions of the defendant and the witnesses called by
the defendant.
If you are suing a business, be certain to ask the defendant's
witness the full and correct legal name of the business and the
name of the person who owns the business. If the name of
the business is different from the name you wrote in your notice
of claim, ask the judge or arbitrator to make any correction in
the name on your notice of claim.
After all the evidence is in, the judge or arbitrator will
consider the evidence and render a decision. The decision
will be mailed to the parties within a few days of the
hearing. In rare cases, the decision may be announced
immediately after the trial.
Disclosure
of assets.
It is your responsibility to
collect information on the defendant's assets in the event you
receive a judgment in your favor and the defendant does not pay
you. [See
"How Can I
Collect My Judgment?"]
The court has the power, before entering judgment, to examine
the defendant, to order the defendant to disclosure his or her assets,
and to restrain the defendant from disposing of those assets.
What
happens if one party does not appear?
If the claimant does not appear in court when the calendar is
called, the case will be dismissed.
If the defendant does not appear, the court will direct an
"inquest" (hearing). That means the claimant
will go before the judge or arbitrator to present evidence to
prove his or her case without the defendant presenting any
evidence. If the claimant's case is proved, a
"default" judgment will be awarded against the
defendant.
If a default judgment is granted because the defendant did not
appear, or the case is dismissed because the claimant did not
appear, the losing party may ask the court to re-open the case
and restore it for a trial upon a showing of good cause.
Contact the clerk for the procedure used to re-open the
case. The clerk also will set a date when both sides are
to return to court.
On the return date, the judge will decide whether to re-open the
case. However, both sides should be prepared for trial in
the event the case is re-opened.
Settlements.
In a lawsuit, one of the parties must always lose.
Although you believe you are entitled to win, the judge or
arbitrator may rule against you. Therefore, parties to a
Small Clams action are encouraged to settle their cases whenever
possible. You should seriously consider a reasonable offer
to settlement.
If the case is settled before the day of trial and the money has
been paid, notify the clerk by mail. You do not have to
appear in court.
If a case is settled but the money has not been paid, or if
settlement talks are not completed, the claimant may wish to
appear in court so that the case is not dismissed and ask the
judge for "adjournment pending settlement." A
new date then will be set for trial. If the settlement
does not work out, both parties should appear in court on the
new adjourned date prepared for trial.
Can
I appeal the case if I lose?
If your case was tried by a judge, you may appeal the
decision if you believe justice was not done. You cannot
appeal if an arbitrator tried your case.
Technical mistakes made during the trial are not grounds for
reversal. The appellate court will consider only whether
substantial justice was done.
Very few Small Claims cases are appealed. The expense of
appealing is rarely justified in a Small Claims action.
Taking an appeal may require retaining an attorney. In
addition, the party who is appealing must purchase a typed
transcript of the trial proceedings from the court reporter, or
from the court when audio recording of the trial is
authorized. If no stenographic minutes were taken, the party
appealing will be required to prepare a statement of what took
place during the proceeding or, in some courts, the judge or
clerk will write this statement. If a statement is used,
the party who is not appealing will have the opportunity to
offer changes to the statement.
If you decide to appeal, you must file a notice of appeal and
pay the required fee within 30 days after the judgment is
entered. Consult the Small Claims clerk if you wish
further information about starting an appeal.
The party appealing the judgment can temporarily prevent its
enforcement pending the decision on the appeal. To do
this, a bond or undertaking must be filed with the court to
guarantee payment of the judgment should the party lose the
appeal. If you receive a notice of appeal, you should call
the court to find out if an undertaking has been posted; if not,
you may take steps necessary to collect the judgment immediately,
or you may wait until the appeal has been decided.
What
do I do if I win?
If the claimant wins, the court
will enter a judgment for a sum of money. The court also
may require the claimant to take certain action -- for example,
return damaged merchandise to the defendant -- before entering
judgment.
How
can I collect my judgment?
Winning a judgment does not guarantee you will collect!
The court provides some help in collection of
judgments. For example, prior to rendering judgment, the
court can order the defendant to disclose his or her asserts and
restrain the defendant from disposing of them. However,
you must take the necessary steps to obtain payment of your
judgment.
After winning a judgment in your favor, you should try to
contact the losing party to collect your judgment. If the
defendant does not pay you, you may need the services of an
enforcement officer -- a sheriff, city marshal, or a constable.
In Westchester County, the Westchester County Police Sheriffs
Civil Bureau is located at 110 Dr. Martin Luther King Jr. Blvd.
Room 217, White Plains N.Y. 10601, and may be contacted at
telephone number (914) 995-3053.
You must provide this officer with the information needed to
locate assets (money or property) of the defendant, and the
enforcement officer then can seize those assets to satisfy your
judgment. The enforcement officer will require mileage and
other fees before he or she seizes the assets. In many
circumstances, these fees later can be added to the original judgment
amount you receive from the defendant.
Property that may be reached by an enforcement officer includes
bank accounts, wages, houses or other real estate, automobiles,
stocks, and bonds.
Locating
Assets
1.
Information
Subpoenas
If a Small Claims judgment
has been entered in your favor, you may obtain an information
subpoena from the Small Claims clerk upon payment of a $20.00
fee. If you request it, the clerk will assist you in the
preparation and use of the information subpoena forms.
Some stationery stores also sell information subpoena forms.
An information subpoena
is a legal document that may help you to discover the location
of assets of the judgment debtor (defendant). It is a
legal direction to a person or institution to answer certain
questions about where the assets of the defendant are
located. The information subpoena may be served upon the
judgment debtor and upon any person or corporation that you
believe has knowledge of the judgment debtor's assets -- for
example, the telephone company, landlord, or bank.
Separate forms are used for service on the judgment debtor and
service on any other person or corporation.
The person or corporation served with an information subpoena
must answer the questions served with the subpoena within seven
days of receipt. The information subpoena, accompanied by
two copies of a set of written questions and a prepaid addressed
return envelope, may be served by ordinary or by certified mail,
return receipt requested.
2.
Bank Accounts & Wages
One simple way to improve the
chances of collecting your judgment is to learn the name and
address of the bank where the defendant keeps a savings or
checking account. A way to do this is to look
at the back of a canceled check
you
or a friend may have given to the defendant. With this
information, the enforcement officer can seize money in the
defendant's account and use the funds to satisfy your judgment.
Another way is to find out the name and address of the
defendant's employer. If you sued an employed person, you
may be able to collect your judgment out of his or her
salary. To do this, the enforcement officer can serve an
"income execution" on the judgment debtor. This
execution requires the debtor to pay 10% of the judgment
debtor's salary to you until the judgment is paid, provided the
debtor's gross earning are above a certain minimum amount set by
federal law (currently $142.50 per week).
3.
Real
Property
If the defendant owns real
property (real estate), you may be able to collect your
judgment from its sale. The clerk will direct you to the
proper office where you can check property ownership. You
will have to obtain a transcript of your Small Claims judgment
from the court and file it with the County Clerk. You then
should consult a sheriff, who may conduct a sale at a public
auction. It is your responsibility to prepare the papers
to sell the property. The sheriff, after deducting his or
her fees and expenses, and after paying off any prior mortgage,
tax liens, and judgments, will send the balance to you, up to
the amount of your judgment, plus interest.
4.
Personal Property
Your judgment can be paid from the sale of defendant's personal property,
such as automobiles. Contact the enforcement officer
(Civil Bureau) for details of the expenses and fees
required. It is your responsibility to prepare the papers
required to sell the property.
If you give an enforcement officer the model, year, and license
plate number as well as the location of the defendant's
automobile, the officer can seize it sell it at auction and pay
your judgment with the proceeds. You can check with the
N.Y. State Department of Motor Vehicles to learn whether
the defendant owns an automobile (fill out form MV-15).
You can also find out from the Department of Motor Vehicles
whether a bank or finance company already has a claim against
the defendant's car.
Other
enforcement procedures
1. Claims bases on
Motor Vehicle Ownership
If your claim was based
on the defendant's ownership or operation of a motor vehicle,
you may able to have the Department of Motor Vehicles suspend
the defendant's driver's license and auto registration until the
judgment is paid. To take advantage of this procedure, you
must have a judgment for over $1,000 that has remained unpaid
for more that 15 days after it becomes final. Ask the
clerk for details of this procedure.
2. Licensing Agencies
If the judgment debtor is engaged in a business that is licensed
or certified, you may notify the appropriate state or local
authority if the judgment remains unpaid 35 days after the
judgment debtor receives notice of entry of the judgment.
The failure to pay a judgment may be considered by the licensing
authority as a basis for the revoking, suspending, or refusing
to grant or renew a license to operate a business. At the
end of this guide is a list of prominent licensing or certifying
authorities and a description of the types of businesses each
oversees. If the Small Claims arises out of the conduct of
the defendant's business, the court will determine the
appropriate licensing or authority for the defendant in your
case.
3. Prior Unsatisfied
Judgments
If a defendant has failed to pay three or more judgments despite
having sufficient resources to pay them, you may be able to sue
the defendant for triple damages. Check with the clerk to
see if your defendant is listed in the index of unsatisfied
judgments maintained by the court.
Prominent
State Licensing or Certifying Authorities
1. Department of Agriculture and markets
The Department's
regulatory authority includes licensing of and the issuing of
permits for:
-
Manufacturers, wholesalers, and handlers of frozen desserts;
-
Persons
acting as dealers, brokers, or commission merchants for the sale of farm products;
-
Milk
dealers;
-
Food
Processing establishments;
-
Refrigerated
warehouses, locker plants, and fresh foods;
-
Operators
of purebred dog kennels
-
Anyone
who deals in, handles, or transports domestic animals, or
operates a livestock auction.
2. Division of
Alcoholic Beverage Control
The Division issues licenses and permits authorized by the Alcohol
Beverage Control law for the manufacture, distribution, and sale
of alcoholic beverages within the State.
3. Banking
Department
The Department regulates all activities relating the N.Y. State
chartered banking industry. The Department also enforces laws
and policies dealing with consumer credit and other financial
services, the prevention of illegal lending, and other consumer
abuses. 4. Commission on
Cable Television
The Commission issues confirmation certificates for new
franchises, renewals of franchises, and loss of services from a
franchise. 5. Education
Department
The Department licenses approximately 30
professions, including the following:
| Physician & physicians'
Assistants |
|
Physical
Therapists; |
| Chiropractors |
|
Dentists
& dental hygienists; |
| Veterinarians; |
|
Pharmacists; |
| Nurses; |
|
Podiatrists; |
| Optometrists; |
|
Engineers
& architects; |
| Accountants |
|
Psychologists; |
| Social
Worker; |
|
Acupuncturists; |
| Interior
designers; |
|
|
The Department also licenses
private schools, business schools, and agents for private
schools. It registers private schools for handicapped
children and all post secondary educational programs, including
professional schools.
6. Judicial Branch -
Appellate Divisions
The Appellate Divisions conduct proceedings to admit, suspend,
or disbar attorneys who wish to practice or who are practicing
in the courts of N.Y. State.
7. Department of Environmental
Conservation
The Department's principal regulatory programs include: water
pollution control; air pollution radioactive waste control;
solid and hazardous waste management; waste transport; mining;
public water supply; dams; and protection of freshwater and
tidal wetlands, streams, and navigable waters.
8. Insurance
Department
The Department issues licenses and permits, conducts examinations,
and administers fines relating to insurance4 companies, agents,
brokers, and adjusters, including the following:
- Any
firm, association, or corporation doing insurance business in
the State;
- Anyone
acting as a life, accident, or health insurance agent;
- Anyone
acting as an insurance broker;
- Anyone
acting as an insurance adjuster.
9. Department of
Labor
The Department has regulatory jurisdiction in the areas of
employee safety and health, employee earnings, and employee
coverage under unemployment insurance.
10. Division of the
Lottery
The Division has the statutory responsibility to conduct lottery
games for the benefit of education and is empowered to license
ticket sellers.
11. Department of
Motor Vehicles
The Department regulates the registration and titling of motor
vehicles and issues drivers' licenses. It also licensees
or registers inspection stations, driving schools and
instructors, repair shops, dealers and transporters, the vehicle
salvage industry, snowmobiles, all-terrain vehicles, motorboats,
and unique motor vehicles.
12. Department of
Public Service
The Public Service Commission has the power of general
supervision of all gas, electric, water-works corporations, and
telephone and telegraph lines. Rates for privately owned
gas, electric, steam, telephone, telegraph, radio-telephone, and
waterworks corporations need Commission approval.
13. Racing and
Wagering Board
The Board issues licenses to the following concerning thoroughbred,
harness, and quarter-horse racing:
| Owners; |
|
Trainers; |
| Assistant
trainers |
|
Jockeys; |
| Drivers; |
|
Jockeys'
agents; |
| Veterinarians; |
|
Furriers; |
| Race
track employees |
|
|
14. Department of Social
Services
The Department regulates
residential foster care of children, family day care facilities,
day care centers for children of eligible guardians, and adult
residential care. Special care homes for unwed mothers,
victims of domestic violence, and workshops for the blind are
all regulated by the Department.
15.
Department of Taxation and Finance
The Department is responsible for the registration of:
-
Alcoholic beverage distributors;
-
Motor fuel distributors;
-
Diesel motor fuel retailers and bulk purchases;
-
Owners of diesel motor vehicles;
-
Flea market promoters;
-
Vendors required to collect sales tax;
-
Organizations exempt from sales tax.
The Department is responsible for the licensing of:
The department issues
permits for motor vehicles subject to highway-use or fuel-use
taxes. It also appoints cigarette tax agents.
16.
Department of Transportation
The Department regulates railroads, and bus and trucking
companies. It also grants licenses to public utility
companies for real estate rights on Department of
Transportation-controlled property.
Prominent
local licensing or certifying authorities
If you desire a list of the most
prominent local licensing or certifying authorities, you should
contact the court clerk for this information.
Back
To Top
Back
Civil Main Page |
