Small Claims Court Scenarios After you File the Initial Claim Form
Other Documents Available for Purchase
http://www.drted.com/Small Claims Court Articles.htm (Documents: PLDZ- 1-13)
You will also see references to pages in the Small Claims Court book by Dr. Ted Rothstein
ATTENTION: My attorney told me to say that I am NOT A LAWYER; indeed I am an ORTHODONTIST My CV. The original intention of my book (see amazon.com) is to show my colleagues how to methodically collect the fees for their well-deserved professional services, after they have exhausted all efforts to collect by other methods. This book shows my readers that they can collect fees themselves rather than turning the delinquent account over to collection agencies, (who in my opinion have proven to be a lamentable waste of time and money). Indeed, my book offers an array of criteria for deciding whether or not to initiate filing a claim in Small Claims Court (SCC). The most important value of my book is show the reader how to make the FEWEST mistakes possible (I have made them all) and how to use the legal tools that are available once you win a "Judgment" in your favor. While this book is basically a how-to primer for professionals, non-professionals may gain invaluable knowledge from it, too. Any person can have his day in court WITHOUT the need of lawyers (Pro Se) or indeed any legal knowledge whatsoever, where he may receive "Substantial" Justice. The documents are based on my extensive use of the Small Claims Court in Brooklyn, which is a few short blocks away from my office in downtown Brooklyn. In all of the SCC cases upon which my experience is based I was the plaintiff. Finally, If you do purchase some of the documents and they help you, please write a nice review.
Never forget to bring a pen and paper with you to your hearing.
Before I review
all scenarios that I have experienced, I will first
briefly describe number 8c, which is by far the most common scenario and occurs
the time. It is described in more detail below:
8c. The most common scenario: You appear at the calendar roll call and your name is called. The defendant is absent so the clerk of the court instructs you to go to a preparation room where you will be called again and assigned to the courtroom where an INQUEST is held in the presence of an arbitrator/judge who will swear you in. You will then present your case to the presiding judge in less than five minutes. Three to ten days later you will receive in the mail a judgment indicating whether the judge decided in your favor or not, and how much money you were awarded if you won. SEE WHAT A SMALL CLAIMS COURT JUDGMENT LOOKS LIKE- READ THE FRONT AND THE BACK PLDZ-10
An INQUEST is a hearing of an issue of fact (you owe me $100.00) in which the plaintiff alone introduces testimony and evidence without a jury present before a Judge or an Arbitrator (a lawyer acting on behalf of a judge). The defendant is not present.
1. You forget to go to court on the night of the hearing (A) or you go to the hearing and you discover you came a day, week month too late (B). A and B: In both instances your case was dismissed. Solution A: refile a new Claim Form and pay the filing fee you paid to start with. Your case will have a new Case/Index number. Solution B: tell the clerk at the SCC window what happened and they may show you the procedure and give you a form which allows you to "file a motion to restore" your original case to the the calendar so that the case number you had on the original claim stays on the restored claim. No fee is needed. However, you need to inform the person you are suing the old case/index number, the new hearing date, the time and the place (room number) and the simple reason why you missed the hearing. The clerk can give you that information. It is a bit complicated. I advise you to simply use Solution A (refile your case anew).
1.5 You filed a claim, and your hearing date is coming up, in fact it is this very night. However, for whatever reason you no longer desire to pursue the claim. Your loss is the fee you paid to file the claim ($15-$23). Here is what you do. SIMPLY DO NOT GO TO COURT. When the court clerk "calls the calendar" i.e. when the court officer reads off the names of the plaintiffs and defendants in each case, he will call your name. When the court officer calls your name and you the plaintiff are not there to respond with your name, the court clerk announces that the "case is dismissed". But, if you are not present and the person you sued is present the court officer declares that "This case is dismissed" and advices the defendant that "the plaintiff retains the right to file the claim again, so be aware to check your mail for a new claim." Psychologically this can be nerve racking for some defendants.
2. You receive a check in the mail for payment in full--Sweet.
3. You receive by regular mail and by certified mail a notice from the court that the defendant is counter-suing you [FORM 25]. Do not be alarmed, this is always bogus. If you thought you were susceptible to a counterclaim you would never have initiated a Small Claims Court action. (See Book Section VII. -- COUNTERING THE COUNTERCLAIM). Your case and the defendant's CounterClaim will be heard at the same time.
4. Your debtor calls before the hearing date to make a settlement offer of $2,500. You say: "I wanted $3,000, but I'll split the difference." He agrees -- Amen!
4.5 It's one week before the hearing and no bites, not even a nibble. You call or write the defendant indicating your willingness to settle for an amount, let's say 25% less than what's due -- the amount you would have to pay to send your attorney (bluff about this) to the hearing. "This way we can both avoid the inconvenience of additional costs and having to go to court." He agrees. You say promptly: "I'll send a messenger this afternoon. I'd like to be paid with a certified bank check. I'll sign a General Release [FORM 15] (Blumberg Form #110 -- see APP. E) and have it sent to you when I receive the payment." Here you pause and wait for the response.
5. You decide not to continue the case, for whatever the reason: No problem. You do not have to appear in court! When your name is called by the court clerk at the calendar roll-call the night of the hearing and nobody responds, the clerk will say: "CASE IS DISMISSED" and for the sake of the defendant will continue: "THE PLAINTIFF HAS THE RIGHT TO SUE YOU AGAIN; WATCH OUT IN THE MAIL FOR ANOTHER SUMMONS."
6. You settled with the debtor, but mistakenly thinking you had to be in court, you came for the hearing; or you settled just before the calendar call: When your name is called at the calendar call you respond by saying "CASE SETTLED". You leave and never make that mistake again.
7. You request an adjournment (continuance): You are present at the calendar roll call AND the defendant is also present, but you are not yet ready to have your case heard -- you forgot, or are missing, an important document which supports your case: When your name is called you respond by saying the word "Application" (the legal term more commonly used outside of New York City is "Continuance"). You are telling the court clerk that you want to postpone your hearing to a future date. He will respond by saying, "Wait here until you name is called again." Thirty to sixty minutes later your name will be recalled and you will be asked to approach the "bench". The presiding judge will ask the reason why you want to adjourn the hearing date. Any "reasonable" excuse will suffice. For example: "I need more time to gather evidence" or "I realize I need to consult a lawyer" or "My witness is sick and cant be in court today." You and the defendant must now arrange a date to return for a hearing, usually 3-7 weeks in the future. Your case will then be placed on the "Adjourn Calendar" which means that on the date of the hearing, your case and other adjourned cases will be called before all other cases being heard for the first time In the Brooklyn SCC the roll call for the cases that were adjourned takes place in another room (also on the third floor).
I have never needed to request an adjournment. However, there have been occasions when the defendant has made such a request and the judge has granted it. Request for adjournment must be done in-person before the judge (see exception below, where you do it by mail.). The judge will usually grant the debtors request for an adjournment if it is reasonable, and it is a first-time request for an adjournment. But if the judge thinks the request lacks merit, he/she may note on the case folder that no further requests for adjournment will be permitted. If he does not make a note you should request that he does. (Judge, I request that the defendants request for adjournment be noted as "marked final" meaning that future requests for adjournment be denied) This minimizes the possibility that the defendant will keep adjourning the hearing. Repeated adjournments are most annoying to say the least.
8a. You are present at the calendar call and respond by saying your name, but the defendant does not respond to his/her name, however the clerk continues with: "Wait here until your name is called again." About thirty minutes later your name is called and you are invited to come forward for a brief chat with the clerk who tells you that the defendant requested an adjournment by mail! When this happened to me the excuse used by the defendant was that she was enrolled in a class that met one night a week and it would be a hardship for her to miss the class. (It was accompanied by a supporting document from the school). You should ask to see the written request on the chance that it is in some way or another bogus. And if it is, you should ask that the adjournment be denied, and that you be permitted to have your INQUEST that evening. There is virtually nothing you can do to protect yourself from this happening. The debtor is not obliged to let you know that they are requesting an adjournment -- bite the bullet.
8b. Another variation takes place when you are present at the calendar call and respond by saying your name, but the defendant does not respond to his/her name, however the clerk continues with: "The service of the summons was defective and was returned to the clerks office undelivered, wait hear until your name is called again." When you are called again the clerk will take you aside and explain why the summons was defective (undeliverable to the defendant), and tell you what you must do to correct the problem, which is typically, to obtain a good address for the defendant. (In 1996 about 60,000 Initial Claim forms were filed in the five boroughs of New York City. Out of those about 16,700 were returned to the court undelivered.) [FORM 3, side 2] shows a form that the Hudson County court mailed to me after the constable tried four times to deliver the summons (see Notice of Claim, [FORM 25]) without success.
A third variation occurs when
you are present at the calendar
call and respond by saying your name, but the defendant is not there ! (85% occurrence):
An INQUEST is a hearing of an issue of fact in which the plaintiff alone introduces testimony and evidence without a jury present: The court clerk will now say "GO TO ROOM (509 in Brooklyn) FOR AN INQUEST." In room 509 you will wait 10-40 minutes until your name is called again. Then you will be asked to come forward to sign your name (the plaintiff's name) and address on an envelope, in which you will receive 3-10 days later the results of the hearing. You will also be handed several official court papers and will be told to go to a specific courtroom for the hearing. With rare luck you are next. Each case before you takes 3 - 10 minutes.
8d You experience the "Forced adjournment". At roll call you and the defendant are both present. When the clerk calls your name you say "Ted Rothstein...by the court." Which means you are present but you want your case to be heard by a real judge not just a lawyer acting as a judge (in Brooklyn NYC courts is called an "arbitrator"). You go to the courtroom and wait for your case to be heard. The room is very crowded. After about an hour you and the defendant are called. The clerk informs you: There are too many cases before yours that are in line to be heard and the judge will not be able to hear your case this evening. Consequently, you and the defendant agree to have the case heard on another date. In Brooklyn SCC that would usually be about six weeks later because, as you would guess in a city of more than four million people, the Small Claims Court is quite crowded.
When your hearing begins: the arbitrator asks you to swear to tell the truth. The arbitrator now asks you: "What is your case about?" You identify yourself and proceed to tell the arbitrator what happened between you and the debtor, being brief and clear with reference to the documents in your possession supporting your position (usually 2-5 minutes). The arbitrator may ask you some questions, especially if there are any discrepancies between the amount you sued for on your Initial Claim form and what your ledger cards and bills show -- so be prepared to explain. The arbitrator will conclude by saying: "You will receive my decision in the mail".
9. You are present and the defendant is also (5%-10% occurrence): This time you present your case exactly as you did before; then the defendant presents his side (be prepared to hear false or distorted statements). "Keep your cool, the arbitrator is no fool." HAVE PENCIL AND PAPER READY TO TAKE NOTES AND PREPARE QUESTIONS. Your debtor will not be allowed to submit written testimony that comes from other people even if it is in the form of an affidavit (a written statement signed under oath in the presence of a Notary Public). He must present his case by supporting documents and witnesses. It is those documents and their testimony that win or lose the case.
Judges can and do make errors in their decisions. That is why there are appeals courts. Arbitrators also make errors in their decisions, but when they do their decision is FINAL. So, if you fear you might lose and you do not want to lose the right to appeal your case, Here is what to do: At the calendar call when your name is called you respond to the clerk by saying your name and the words "BY THE COURT" You have just told the clerk you want a real judge -- not an arbitrator to hear your case. (Requesting your case be heard before a judge can be very intimidating to the uninitiated defendant -- if he's present.) For this dubious advantage you may have to wait an additional 30 -50 minutes, and if there is an super overabundance of cases, you further run the risk of not being heard at all that night. While there are many arbitrators, there is usually only one presiding judge. What allows you to appeal your case, should you lose before the judge. Your case will be recorded by a court stenographer (nowadays, a machine, faithfully recording the dialogue of the case on tape for posterity). If you're obstinate and up for the challenge, you can obtain from the clerk at the SCC window (Room 903 in Brooklyn) an instruction sheet explaining in the most general terms how to appeal the case. [FORM 30]. The rules for filing an appeal are found
9b. You lose the case: You receive a judgment in the mail 7-14 days after your hearing, but the judge decided in favor of the person you sued. Consequently your award was $000.00. (Do not throw away judgment since it has information on it you will need like the name of the judge who heard your case). If you had chosen to have a judge hear your case (not an arbitrator) you have the right to file a "Notice of Appeal." You can get the form at the window along with the instructions on how to proceed once you have file the Notice of Appeal. Here's the catch:
(of the CCA) Appeals;
practice and procedure in general. (a) Practice and procedure on appeals shall be as provided in article
55 of the
CPLR except insofar as this act or the rules of this court
consistent with this act otherwise provide. (b) An appeal as of right from a judgment entered in a small
claim or a commercial claim must be taken within thirty days of
the following, whichever first occurs: 1. service by the court of a copy of the judgment appealed
from upon the appellant. 2. service by a party of a copy of the judgment appealed from
upon the appellant.
3. service by the appellant of a copy of
the judgment appealed from upon a party. Where service as provided in paragraphs one
through three of this subdivision is by mail, five days
shall be added to the thirty day period prescribed in this section.
Thus, in New York city civil courts from the moment you receive the judgment in the mail you have between 30 and 35 days to file your Notice of Appeal and anywhere and between 9-12 months to carry out "perfecting" it. If the person or lawyer for the person who won mails you copy of the judgment and sends the court an "affidavit of mailing" of the judgment to you, the time you have left to file is 30 days. If you do not file a Notice of Appeal "timely" you will have an uphill battle getting the the court to allow you to file an appeal at all.
The process of doing an appeal is really a task for a lawyer and that is expensive. The legal fees could easily consume the maximum award ($5,000) of the Small Claims Court. Furthermore, the appeals court refuses to hear more than two-thirds of the requests for appeal. Nevertheless, the reader should know that a Notice of Appeal must be filed within thirty days of receipt of the date noted on the judgment (the judges decision).
I have appealed only one case. What I learned from doing that appeal is presented n Appendix G of my book on SCC.
I have had some hearings "BY THE COURT." In one case the defendant and I were asked by the court clerk to step into a small room to try for a settlement by "mediation". Surprise! A student attorney, practicing her mediation techniques, tried to find some middle ground which could permit us to settle our dispute without having to go before the judge. Hard heads prevailed over, and the case had to be heard by the judge.
A case settled by mediation is binding only when both parties agree to sign document in which the terms of the settlement are stipulated. Whether before an arbitrator or a judge, once the defendant presents his side, you get another chance to respond and even to ask the defendant some questions that will help score points with the arbitrator or judge. The defendant gets his last chance also. A the end of the hearing the judge will usually ask if you have anything to say. If you have something to add you do it right then and there. Once the judge indicates your hearing has ended YOU MAY NOT ADD ONE MORE WORD: (YouTube --Rothstein vs Robinson to understand what I am saying.
Your last opportunity to try for settlement comes when you take the elevator down with defendant. Don't avoid it -- think of it as another opportunity -- stay calm, be nice and try to work out an agreement on payment: Money in your hands up front and early is worth a lot more than the hoped-for outcome of a protracted collection effort.
10. A rare scenario, which happened to me on two occasions, plays out as follows: The defendant does not appear at the hearing. You present your documentation and receive your judgment. Ten days later you receive a notice from the court saying that the defendant has petitioned for another hearing and that the judge or arbitrator has granted it and specified a rehearing date. Here is the best example of "Do not pass go, do not collect $200" (for those of you familiar with the game "Monopoly") that I can think of. This is called having your Judgment Vacated (nullify, make void).
"Vacating a judgment" is of course a two way street. If you were sued, and decided that the claim against you was totally absurd, and you decided not to go to the hearing (or simply forgot about the hearing), and the arbitrator ruled against you, you would petition the court to vacate the judgment against you.
Once you have received your judgment, take action to begin collection without a moments delay by sending a "Demand Letter". (PLDZ-5) People are often on the move and your judgment debtor could move to a neighboring state, making collection that much more difficult. If your debtor has moved to a nearby state and you still have momentum to continue your collection efforts, here is what you are obliged to do: Neighboring states have reciprocal agreements to honor each others court decisions. However, you must follow a procedure which seems much like suing the debtor anew, from the very beginning.
As you will see in Appendix I, the procedure for having another state recognize and enforce your judgment always begins by obtaining an "exemplified" copy of your judgment from the SCC clerk of the court where you originally won it. An exemplified copy is one that that is certified to be a "true" copy and bears special seals to prove it. In New York it costs $10, and in New Jersey and Connecticut the cost is $5 and $1 respectively.
What happens depends on whether you won the judgment by default in appearance (the defendant did not show up at the hearing) or if you obtained your judgment after a trial (hearing) and the defendant was present. Such a default judgment will not be accepted for filing. Appendix I presents the procedures for having your judgment recognized in New York, New Jersey and Connecticut for both alternatives.
The author has never actually had to undertake such a procedure. Consequently, his knowledge of the process is based on multiple conversations with knowledgeable court clerks, and supported by other reference sources, including attorneys.
The author has also never encountered two other scenarios that can occur.
11. The cross-claim. Supposing you had to sue not one person who owed you money, but two persons who jointly owed you money (now there are two defendants involved in your claim). If defendant A believes that defendant B has the obligation to pay the entire debt to you, defendant A may file a "cross-claim" against defendant B, claiming that B alone is responsible for the money owed to you. Consequently your case and their case against each other will be heard at the same time.
12. The second scenario is called a third party claim. For example, you sue someone who you believe is responsible for the payment of your debt (the defendant). However, the defendant believes there is a third person (not named as a defendant in your case) who is responsible for all or part of the money you may receive from the defendant. So the defendant initiates a claim against the third person and this new claim becomes a part of your hearing with the defendant. The practical difference to you between the third party claim and the cross-claim is that where a third party claim is made, you dont know of the existence or identity of the third party, or who the third party is until you initiate your suit.
The judgment you receive is valid for 20 years. Hint: Save it.
The schematic overview of the entire process from unpaid bill to collection of fee is shown in CHART I on page 74 (if you have bought the book), and offers readers a global view of the process. Otherwise see [PLDZ-1] ay http://www.drted.com/Small Claims Court Articles.htm
13. You are the plaintiff who has filed a complaint against the doctor (you paid for a service you did not receive or received services that were defective (( denture didn't fit, or broke immediately)) .You may be told at your first hearing that you need to have an expert witness (another dentist) who will testify on your behalf. If you can find such a professional (try Craigs list) willing to testify, the fee for such service will be $300-$1000 payable immediately upon arrival of the expert witness at your hearing and don't forget your hearing may well be adjourned. ADVICE: negotiate with your witness that the fee you are paying will cover at least one more return to court at no further fee. Moreover, remember to tell your witness the whole story because he is not going to lie for you. A good expert witness gives his honest opinion. Finally you should request from the judge, should he/she find in your favor, to include the cost of paying for your expert witness.
POSTSCRIPT: SCENARIOS ENCOUNTERED SUBSEQUENT TO THE PUBLICATION OF THE FIRST EDITION:The following five scenarios were experienced:
In still another scenario, you have a judgment in your favor, but your have lost the whereabouts of your judgment debtor. You have two addresses which you suspect the debtor resided at. You decide to use the power of your judgment to obtain Subpoenas for Information [PDLZ-13] , $2.00/Subpoena which authorizes/forces/orders persons and institutions (employer, bank, telephone company, electric company, landlord, school, etc.) to give you confidential financial and address information about your debtor. The clerk gives you the subpoenas based on the debtors old address, which you used when you originally filed the claim. You then ask for subpoenas based on a second more recent address, but now you are advised it is possible for the newer address subpoenas to be issued when you have completed and have had notarized and returned to the Small Claims Court office an "AFFIDAVIT AMENDING THE DEFENDANTS NAME (ADDRESS). I was able to obtain this form at the SCC clerks office and served them by mail (certified return receipt) on the telephone and electric company.
BIG SURPRISE: You are the defendant. (Plaintiff is not present, but has requested an adjournment by mail): You arrive 6:30 as usual for the roll call. You are looking for the plaintiff but they are not there. So you think "good the case is going to be dismissed". Hold on. Maybe the plaintiff sent a proxy who is going to request the "application" (a request to have the hearing postponed to a day in the future). When the court clerk "calls" your case and the plaintiff's side does not respond you again think "yes the case is going to be dismissed". Hold on. Now you respond "defendant present" and the court clerk continues: "the plaintiff has requested an application". What? The plaintiff is not here and the plaintiff's rep is not here so how is this happening? Here is the answer: you will be asked to appear before the judge who will explain that the plaintiff requested an application by mail. Yes, you can request and adjournment by mail. However, the judge will scrutinize it with a sharp eye and can reject the request for adjournment on the grounds that the excuses given are too flimsy or without any merit. That is what happened. The case was dismissed. Hold on it's not over yet. The Plaintiff has the option of filing the claim again so don't be surprised if you get another summons sometimes in the future. The delay might allow you to make a settlement offer.
Document updated: 050311
Small Claims Court: Brooklyn
Ted Rothstein, DDS, PhD
Cost for an Information Subpoena (PLDZ-13),obtainable only after winning a judgment to help you locate the "Judgment Debtor's" assets: $2.00 per information Subpoena. It is served easiest in-person on the entity that may have information about the judgment debtor's assets, i.e., a bank. There may be a maximum of 3-4 issued at each appearance before the clerk's window. You can serve this on the institution yourself. It can also serve by mail (more complicated).
Cost for a Subpoena for Records (PLDZ-9) ("Subpoena Duces Tecum", pronounced doo'kes tee'kum) This Subpoena is obtained after you have verified that the your Notice of Claim has been served on the defendant. It used when you want documents that you know or believe the defendant possesses and want them to produce THOSE DOCUMENTS on the night of your court hearing or before for you to examine to help support your claim. Cost is $0.00. IT CANNOT BE SERVED BY MAIL.