NY Small Claims Court- you can afford an attorney!
I enjoy representing people in NY small claims court in addition to my matrimonial and family law practice. Although the Small Claims Court is designed to be user friendly so that you can sue without using a lawyer, the Court’s jurisdiction now goes up to $5000.00, which means that you should consider having a small claims attorney represent you on “larger” cases.
You must file your small claims court case in the county where the defendant resides or has an office, not where you reside. Also, you will have to come to court yourself, unless you are a corporation with an employee who has full knowledge of the facts, or there is some other very unusual situation. Also, to my knowledge, none of the NYC Small Claims Courts allow an appearance by telephone or allow witnesses to testify by telephone.
If you are a business with unpaid bills which amount to thousands of dollars you should consider having a business lawyer to file small claims cases for you. It is oftentimes possible to schedule two or three of these cases for a single night. For multiple cases in the same Court, I will quote you a special fee, which is even more affordable. Don’t just write off thousands of dollars!
Experienced trial lawyer|business lawyer
Over the last 15 years or so I have seen many many litigants go “pro se” and try to represent themselves in various courts, but I have only seen one or two out of hundreds, possibly thousands, who had the natural ability to be effective acting as their own lawyer. When I myself first started trying cases over 20 years ago, it took me around 3 years, and over a hundred trials and hearings, before I had even started to “get good” at trying a case. This is why it makes sense to be represented by an experienced small claims court lawyer. I have tried hundreds of cases in the Small Claims Courts of New York, Brooklyn and Queens and am totally familiar with the practices and procedures followed in these Courts.
If you go ahead and represent yourself anyway, after you file your small claims court case and get in front of an arbitrator or judge you will most likely find that although the small claims court goes out of its way to make it possible for you to represent yourself, the big stumbling block will be effectively cross examining the other side’s witnesses. While there are entire books about cross examination, it is as much an art as a science, and like any other art, you have to hone and practice your art for a period of years before it becomes “good art”.
Affordable quality representation
For cases in Manhattan, Brooklyn, or Queens Counties, I generally charge only $300 for a one night court appearance. If the case goes past 9 pm, I charge only $350- so whether you are suing in small claims court or you are the one being sued, why not use an experienced Small Claims attorney for your case? For complex cases or cases involving multiple witnesses, of necessity I have to charge more, but these cases are rare. Although cases can be adjourned for various reasons, the Small Claims Court is designed so that your case will be heard on the first night you come to court- unless someone asks for a Judge instead of an Arbitrator.
The decision of whether to go with an Arbitrator or ask for a Judge is probably the most important tactical decision you will make regarding your Small Claims case. This is something we would have to sit down and talk about as their are pros and cons of each.
Amount you can sue for
The maximum you can sue for in New York small claims court is $5000.00. It is important to understand that you cannot recover for pain and suffering, aggravation, and the like in small claims court. You can only recover money damages, which means money actually spent by you or a loss or damage to property which can be quantified into actual dollars. You must also prove every penny of your damages to the court, unless the defendant agrees as to the amount. You also cannot get around the $5000.00 limit by breaking your $20,000.00 case into 4 separate suits. This is called “splitting your claim” and is not allowed.
Counterclaims and third party claims
A counterclaim is when the defendant (person being sued) “retaliates” by filing his own suit against the plaintiff. The counterclaim can be either related to the main claim or unrelated. A counterclaim can also be brought for up to $5000.00. A third party claim is when the defendant believes that even if the plaintiff can prove that the defendant owes him money, the real culprit is a third party. In this situation the defendant can bring the third party into the action by filing a third party case. The two cases will then be heard (and tried) together.
Procedures once you get to court
Once you are in Court all NY City Small Claims Courts follow a similar procedure. The evening starts with a calendar call. Before the calendar call instructions are given. In Queens Small Claims Court the instructions are repeated in Spanish. Motion calendar cases are usually called first. A Motion is a formal written request to the Court for an order. The most common motions are a motion to re-open a default judgment and a motion to dismiss the case because the defendant is claiming a legal defense to the case, such as the statute of limitations. Motions are heard by the Judge and are usually decided the same night after oral argument by both sides. In Brooklyn Small Claims Court there are two separate calendar calls in two different rooms. One calendar call is for brand new cases while the other calendar call is for adjourned cases. Fortunately the calendar calls are held at different times, but you still have to be in the right room at the right time.
After the motion calendar the “regular” cases are called. In Manhattan there is usually a “second call” in case someone is late. At the calendar call each side states whether they are ready to be heard by an arbitrator, if they wish the case to be decided by a judge, or if they wish to ask for an adjournment of the case for another night. This is called an “application”.
Both parties must consent before an arbitrator can hear the case. An arbitrator’s decision is final and there is no appeal. However, in all of the 4 major boroughs of NYC, there are typically over a hundred cases a night, and only one judge. This means that unless the parties both agree to have the case decided by an arbitrator, they will typically have to come back a number of other times and may have to stay late each time. Also, when the case is finally tried by the judge there is the possibility that the trial may conclude very late, perhaps even as late as midnight. This is why, in the end, most cases end up being tried by the arbitrator and not by the judge.
Judges are required to give “substantial justice” but they may feel constrained to follow the letter of the law. In my experience although the judges in small claims court will usually follow the rules of procedure (i.e. plaintiff goes first, then is cross examined by the defendant, then defendant goes, then is cross examined by the plaintiff, then parties sum up), the application of the rules of evidence tends to be somewhat unpredictable. Arbitrators, on the other hand, are not constrained by any rules, neither of evidence nor of procedure, and a trial before an arbitrator can range from an orderly matter, not that different from a trial before a judge, to a virtual “free for all”.
In order to avoid ugly scenes, the judge or the arbitrator will almost always “reserve decision” which means that you won’t know the outcome until you receive the decision in the mail. This is usually within a day or two. If the decision is by a judge you have a right to appeal, but appeals are very rare as they are typically very expensive. You will have to pay around $5 a page for the transcript of the trial and will have to pay filing fees and other expenses in order to appeal. In addition to these costs, it is almost impossible for a non-lawyer to navigate all of the arcane rules of appellate practice. Plus, appeals can take a year or even more to be decided.
Call me today at (347) 461-0760 about your NY Small Claims Case ( NY, Brooklyn and Queens counties only).