Questions about “Smaller” issues
SMALL CLAIMS COURT- THE PEOPLE’S COURT. WHAT IS IT? CAN I USE IT? IS IT A REAL COURT?
The Small Claims Court is an informal court where individuals can sue for money damages only, up to $5,000.00. You cannot, however, compel the person or business to fix the damaged item or require the performance of the act promised in the advertisement. Keep in mind your lawsuit can be only for money. There is at least one Small Claims Court in each of the 62 counties in New York State.
Anyone over 18 years of age can bring an action in Small Claims Court. If you are younger than 18, your parents 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 an additional defendant. This will be a third party action you will have against that defendant.
If you choose, you may be represented by an attorney at your own expense, but it is 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.
To initiate a small claim, you, or someone on your behalf, must go to the Small Claims Court to file a statement of the claim. You should be prepared to give a brief written statement of the facts that form the basis of your claim. If you are suing on a contract or for property damage, you may claim interest as well as money damages. You should keep in mind that you must sue in a court having Small Claims Court in an area where the defendant lives or works or has a place of business.
You will be required to pay filing fee of $15.00 if your claim is for $1,000 or less and a filing fee of $20.00 if your claim is more than $1,000. The clerk of the court will send a 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.
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 for up to $5,000 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 $5.00 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 trial.
Remember to be on time on the day of the trial. If the claimant is late, the case may be dismissed. If the defendant is late, a default judgment against the defendant may be granted. The trial is a simple, informal hearing before a judge or arbitrator.
In Town and Village Courts and in many other courts, only judges are available to try cases. However, in many others, both judges and arbitrators are available to try cases. An arbitrator is an experienced lawyer who serves without pay. Your case can be tried by an arbitrator if both sides agree. The arbitrator will apply the same law to your case as the judge would apply. When an arbitrator determines a case, the decision is final and there is not further appeal by either the claimant or defendant.
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 may 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. Remember you will use the same type of evidence you would use in a regular court of law: documents, testimony, subpoenas, etc.
What about mediation of my small claim? 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 a small filing fee.
If your case was tried by a judge, you may appeal the decision if you believe justice was not done. You cannot appeal if your case was tried by an arbitrator. 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.
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. As you can expect, winning a judgment does not guarantee you will collect. 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. 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 may request 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 (10% as long as the defendant makes more than $142.50 per week), houses or other real estate, automobiles, stocks, and bonds.
You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about New York Small Claims Court. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with a small claim case.
Each case is fact-specific and therefore similar cases may have different outcomes.
Smith, Sovik, Kendrick & Sugnet, P.C. handles small claims, personal injury actions, and work related accidents. If you have any questions or concerns about your case or a case of a friend or family member, you can call me at (315) 474-2911 or 800-675-001, send me a fax at (315) 474-6015, or e-mail me at jperez@smithsovik.com. My office is located at 250 South Clinton Street, Suite 600, Syracuse, New York13202. You will hear from me again in October.
