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A Guide to Small Claims Court

Written by smallclaims  |  11. January 2002

WHAT IS THE SMALL CLAIMS COURT? The Small Claims Court is a part of the District Court where individuals can sue for money only, up to $3,000 without a lawyer.
WHERE ARE THE LONG ISLAND SMALL CLAIMS COURTS LOCATED? Suit must be filed where the defendant is located.
Nassau: 2nd District 99 Main St, Hempstead, (516) 572-2264 3rd District 435 Middle Neck Rd. Great Neck (516) 571-8400 4th District 87 Bethpage Rd. Hicksville (516) 571-7089
Suffolk: 2nd District 375 Commack Rd. Deer Park (631) 854-1950 3rd District 1850 New York Ave. Huntington Station (631) 854-4545; 4th District Bldng 158 North Country Complex Vets Memorial Hwy Hauppauge (631) 853-5408; 5th District 400 Carleton Ave Central Islip (631) 853-7615 6th District 150 W. Main St Patchogue (631) 854-1440 HOW DO I START A SMALL CLAIMS CASE? Go down to the Small Claims Court where the defendant is located. Fill out a form known as a summons and write down a brief statement of the facts that form the basis of your claim. You will be charged a small filing and the clerk will tell you when the case will be tried.
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.
ADJOURNMENTS Adjournments in 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.
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.
PREPARING FOR TRIAL 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 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.
HOW IS A TRIAL CONDUCTED? 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.
WHAT HAPPENS IF ONE PARTY DOES NOT APPEAR? 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.
CAN I APPEAL THE CASE IF I LOSE? 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.
WHAT DO I DO IF I WIN? 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.
HOW CAN I COLLECT MY 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.
LOCATING ASSETS 1. Information Subpoenas If a Small Claims judgment has been entered in your favor, you may obtain an information subpoena from the Small Claims clerk upon payment of a $2.00 fee. If you request it, the clerk will assist you in the preparation and use of the information subpoena forms. Some stationery stores also sell information subpoena forms. An information subpoena is a legal document that may help you to discover the location of assets of the judgment debtor (defendant). It is a legal direction to a person or institution to answer certain questions about where the assets of the defendant are located. The information subpoena may be served upon the judgment debtor and upon any person or corporation that you believe has knowledge of the judgment debtor's assets -- for example, the telephone company, landlord, or bank. Separate forms are used for service on the judgment debtor and service on any other person or corporation. The person or corporation served with an information subpoena must answer the questions served with the subpoena within seven days of receipt. The information subpoena, accompanied by two copies of a set of written questions and a prepaid addressed return envelope, may be served by ordinary or by certified mail, return receipt requested.
2. Bank Accounts and Wages One simple way to improve the chances of collecting your judgment is to learn the name and address of the bank where the defendant keeps a savings or checking account. A way to do this is to look at the back of a canceled check you or a friend may have given to the defendant. With this information, the enforcement officer can seize money in the defendant's account and use the funds to satisfy your judgment. Another way is to find out the name and address of the defendant's employer. If you sued an employed person, you may be able to collect your judgment out of his or her salary. To do this, the enforcement officer can serve an "income execution" on the judgment debtor. This execution requires the debtor to pay 10% of the judgment debtor's salary to you until the judgment is paid, provided the debtor's gross earnings are above a certain minimum amount set by federal law (currently $142.50 per week).
3. Real Property If the defendant owns real property, you may be able to collect your judgment from its sale. The clerk will direct you to the proper office where you can check property ownership. You will have to obtain a transcript of your Small Claims judgment from the court and file it with the County Clerk. You then should consult a sheriff, who may conduct a sale at public auction. It is your responsibility to prepare the papers to sell the property. The sheriff, after deducting his or her fees and expenses, and after paying off any prior mortgage, tax liens, and judgments, will send the balance to you, up to the amount of your judgment, plus interest.
4. Personal Property Your judgment can be paid from the sale of defendant's personal property, such as automobiles. Contact the enforcement officer for details of the expenses and fees required. It is your responsibility to prepare the papers required to sell the property. If you give an enforcement officer the model, year, and license plate number as well as the location of the defendant's automobile, the officer can seize it, sell it at auction, and pay your judgment with the proceeds. You can check with the New York State Department of Motor Vehicles to learn whether the defendant owns an automobile (fill out form MV-15). You can also find out from the Department of Motor Vehicles whether a bank or finance company already has a claim again the defendant's car. If the defendant has a large unpaid auto loan, a bank or finance company might be entitled to payment of the loan from the sale of the defendant's vehicle before your judgment can be satisfied.
OTHER ENFORCEMENT PROCEDURES 1. Claims Based on Motor Vehicle Ownership If your claim was based on the defendant's ownership or operation of a motor vehicle, you may be able to have the Department of Motor Vehicles suspend the defendant's driver's license and auto registration until the judgment is paid. To take advantage of this procedure, you must have a judgment for over $1,000 that has remained unpaid for more than 15 days after it becomes final. Ask the clerk for details of this procedure.
2. Licensing Agencies If the judgment debtor is engaged I a business that is licensed or certified, you may notify the appropriate state or local authority if the judgment remains unpaid 35 days after the judgment debtor receives notice of entry of the judgment. The failure to pay a judgment may be considered by the licensing authority as a basis for the revoking, suspending, or refusing to grant or renew a license to operate a business. At the end of this guide is a list of prominent licensing or certifying authorities and a description of the types of businesses each oversees. If the Small Claims arises out of the conduct of the defendant's business, the court will determine the appropriate licensing or authority for the defendant in your case. If the judgment debtor is a business that the court finds to be engaged in fraudulent or illegal conduct, you have the right to notify the Attorney General and, if the business is licensed, the appropriate licensing authority as well.
3. Prior Unsatisfied Judgments If a defendant has failed to pay three or more judgments despite having sufficient resources to pay them, you may be able to sue the defendant for triple damages. Check with the clerk to see if your defendant is listed in the index of unsatisfied judgments maintained by the court. Excerpted portions from the New York State Unified Court System Brochure, "A Guide to Small Claims Court (September 1996).

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