A counterclaim for up to $3,000 may be filed within five days of a notice of claim for a $3.32 fee. A counterclaim may also be interposed by application to the court on the day of the trial but the claimant is then entitled to an adjournment.
Whether or not a defendant appears to answer an action, the claimant must establish a prima facie case of liability and damages. A litigant is not automatically guaranteed a judgment if the defendant does not appear.
Additionally the court almost always grants an initial motion to vacate a default judgment if brought within a reasonable time of the default. Winning an inquest is no guarantee that the action is over. The claimant may be required to return with proof once again, this time for a full trial.
TRIALS
The Small Claims trial procedure is a simplified one. The litigants and all witnesses are sworn, whether the procedure is on the record before a judge or is an arbitration. All litigants have the opportunity to be heard and to present documentary evidence and witnesses. Counsel are entitled to examine their own parties and witnesses as well as cross-examine the opposing party, Falker v. Chrysler, NYS2d 357,360 (Civ. Ct., N.Y. County, 1983).
Because the mandate of the Small Claims Part is to do "substantial justice between the parties according to the rules of substantive law," there is no absolute right to open or close, and in their discretion judges and arbitrators may interject questions or even lead the examination. McLaughlin v. Municipal Ct., 32N.E.2d 266, 271 (Mass. 1941).
By filing a small claims action a claimant waives trial by jury, although a defendant may request one under CCA §§1806 and 1804-A.
Pursuant to CCA §§1806 and 1804-A, the only evidentiary rules a judge or arbitrator must follow concern privileged communication and evidence barred under the rules that pertain to decedents and the mentally ill. Sections 1804 and 1804-A that a paid bill or two estimates are prima facie proof of the "value and necessity of such work or repairs." Expert testimony also will establish value.
Other than that, an attorney will find that almost all evidence will be admitted "for what it is worth." Most judges and arbitrators will save objections until the end of the entire proceeding.
Hearsay is admissible. Nevertheless, an award may not be predicated on hearsay alone. Levin v, Bucholtz, 155 NYS2d 770, 770 (1st dept. 1956).
The most important rule for an attorney in the Small Claims Part is to tailor the representation to the forum. Overly aggressive or lengthy cross-
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