Small Claims Info for NY P3-->

Discussion in 'Credit Talk' started by Rob, Jun 30, 2001.

  1. Rob

    Rob Active Member


    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 be 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.


    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.


    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 disclose his or her assets, and to restrain the defendant from disposing of those assets.


    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 that 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.


    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 Claims 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.


    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.

    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.


    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.


    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 assets 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. 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, houses or other real estate, automobiles, stocks, and bonds.
  2. Rob

    Rob Active Member


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