WHAT IS A COUNTERCLAIM ? 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 $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 (adjournments by telephone are not available in New York City or Nassau and Suffolk Counties), 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 a simple, informal hearing before a judge or arbitrator. SHOULD I CHOOSE A JUDGE OR AN ARBITRATOR? In Town and Village Courts and in many other courts, only judges are available to 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. Your case can be tried by an arbitrator 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 a 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 by 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 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. 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.
