New York State Unified Court System
Judith S. Kaye, Chief Judge
Jonathan Lippman, Chief Administrative Judge
WHAT IS THE SMALL CLAIMS COURT?
The Small Claims Court is an informal court where corporations, partnerships and associations can sue for money only, up to $5,000.00 without a lawyer.
For example, if you feel that a person or business damaged something of yours, you may sue that person or business for the monetary amount of your damages. You also may sue a person or business for money damages arising out of a dispute over a contract. You cannot, however, in Small Claims Court to compel that person or business to fix the damaged item or require the performance of the act promised in the advertisement. Your lawsuit can be only for money.
Most Small Claims Courts have a clerk who can assist you with the procedures for bringing your lawsuit. In those Town or Village Courts that do not have clerks, the judge may assist you. When this guide mentions the clerk, and the court you are using does not have a clerk, you should seek the assistance of the judge.
WHO CAN USE THE SMALL CLAIMS COURT?
Anyone over 18 years of age can bring an action in Small Claims Court. If you are younger than 18, your parents or guardian may file the claim for you. Corporations, partnerships, associations, or assignees cannot sue in Small Claims Court, but they can be sued.
If you sue in Small Claims Court, you are the claimant (plaintiff); if you have been sued, you are the defendant. You can sue more than one defendant in the same case if necessary.
If you are sued, and you believe that a third party is responsible for the claim, you may be able to bring that party into the lawsuit as a defendant. Contact the clerk of the Small Claims Court for information about a "third-party action."
If you choose, you may be represented by an attorney at your own expense, but it is not necessary to have an attorney since Small Claims Court is meant to be a "people's court" where claims may be tried speedily, informally, and inexpensively. The defendant has the same choice. If there are attorneys on both sides, the case may be transferred to a regular part of the court.
WHERE ARE THE SMALL CLAIMS COURTS LOCATED?
There is at least one Small Claims Court in each of the 62 counties in New York State, including at least one is each of the five boroughs of New York City. In the City of New York, the Small Claims Court is part of the Civil Court of the City of New York. In Nassau and Suffolk Counties, the District Courts have Small Claims Parts. All city courts have a Small Claims part. Town and Village Court, with exception of those located in Nassau County, handle Small Claims in the municipalities where they are located. Consult your telephone book for the address and phone number of your local court and call that local court for information.
HOW DO I START A SMALL CLAIMS CASE?
You, or someone on your behalf, must come to the Small Claims Court to file a statement of your claim.
You should be prepared to give a brief written statement of the facts that form the basis of your claim. Check any documents relating to your case for the relevant dates and names. If you are suing on a contract or for property damage, you may claim interest as well as money damages. You must sue in a court having Small Claims Court in an area where the defendant lives or works or has a place of business.
You will be required to pay filing fee of $15.00 if your claim is for $1,000 or less and a filing fee of $20.00 if your claim is more than $1,000.
When the claim is filed, the clerk will tell you when the case will be tried. The clerk will then send the notice of claim to the defendant by both certified mail and ordinary first class mail. The notice of claim tells the defendant when the case will be tried and gives a brief statement of your claim and the amount of money you are seeking. If the copy of the claim sent by ordinary mail is not returned as undeliverable within 21 days, the defendant is presumed to have received notice even if the claim sent by certified mail has not been delivered.
If the notice is not delivered by the post office, the court will set a new trial date and tell you how to arrange for personal service of the notice of claim on the defendant. Personal service may be made by any person (including a friend or a relative) who is 18 years of age or older, except that you or any other party to the action may not serve the notice of claim.
If the service of the notice cannot be made upon the defendant within four months of the date when the action was first started, the action will be dismissed without prejudice to your bringing the action at a later time.
A Small Claims case will not proceed to trial until the defendant has been served with a notice of claim.
MUST I KNOW THE DEFENDANT'S CORRECT NAME
When filing a Small Claims case, the claimant must provide the name and address of the person or business being used. If you do not know the correct legal name of the defendant, you can sue using any name under which the defendant does business. However, you should go to the office of the County Clerk in the county where the business is located to find out who owns the business and the legal name of the business. The County Clerk's office keeps a record of the names under which businesses are operated.
If you discover the defendant's correct "legal" name before the trial date, return to the Small Claims Court and have the case papers changed to state the correct name of the defendant.
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 $5,000 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.
The defendant is required to file his or her counterclaim with the court within five days of receiving your notice of claim and must pay the court a fee of $5.00 plus the cost of mailing the counterclaim to you. If the defendant fails to file a counterclaim within the five-day period, the defendant may still file the counterclaim until the time of the trial. The judge then may either proceed with the trial or adjourn the trial for a short period of time. However, if the defendant did not file the counterclaim within the five-day period, the judge must adjourn the trial to a later date if you so request.
If you receive notice of a counterclaim against you, contact the Small Claims Court to see what procedures you should follow. Be prepared to try both your own case and the counterclaim at the time of your trial.
Any claim or counterclaim for more than $5,000 may not be brought to a Small Claims Court; it must be brought in another part of the court or in another court.
Adjournments of 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. Some courts permit adjournments to be requested by mail or by telephone (adjournments by telephone are not available in New York City or Nassau and Suffolk Counties), and you should contact the court to find out the method of adjournment. If you do not have a good excuse, your request may be denied and, if you are not ready to go to trial, your case may be dismissed, or, if you are the defendant, an award may be made without your having been heard.
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 or judge 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.
SHOULD I CHOOSE A JUDGE OR AN ARBITRATOR?
In Town and Village Courts and in many other courts, only judges are available to try cases. However, in New York City, Nassau and Westchester counties, the cities of Buffalo and Rochester, and some other locations, both judges and arbitrators are available to try cases.
An arbitrator is an experienced lawyer who serves without pay. Where arbitrators are used, there usually are many arbitrators available and only one or two judges. Your case can be tried by an arbitrator if both sides agree. If you and the defendant agree to have your case heard by an arbitrator, the case probably will be heard sooner because there are more arbitrators than judges.
Do not hesitate to have your case tried by an arbitrator. He or she will apply the same law to your case as the judge would apply. The hearing before an arbitrator is less formal, and you may not be as nervous as you might be before a judge. When an arbitrator determines a case, the decision is final and there is not further appeal by either the claimant or defendant.
CAN I CHOOSE TO GO TO MEDIATION?
Yes. There are community dispute resolution centers, under contract to the courts, available in every county in the state. There is normally no charge or a small filing fee. Your case will be scheduled quickly at a time and place convenient to all parties. Matters are confidential and the process is voluntary. Mediation gives you ample time to present your position. You take responsibility to work together on possible solutions with the help of a professionally trained mediator. A written binding agreement can be drawn up by both parties. You can locate your nearest dispute resolution center by checking your telephone book or by obtaining at Small Claims Court the brochure on your local dispute resolution center.
ARE THERE ANY JURY TRIALS?
The claimant in a Small Claims action cannot demand a jury trial. A defendant, however, may demand a trial by jury. If a defendant demands a jury trial, the defendant must pay a jury fee and file a $50.00 "undertaking" (security) with the court to guarantee the payment of costs that may be awarded against the defendant. The defendant also is required to make an affidavit specifying the issues of fact which the defendant desires to have tried by a jury, and stating that such trial is desired and demanded in good faith. The Small Claims clerk will answer your questions regarding the procedures for obtaining a jury trial. Jury trials are held before panels of six jurors.
PREPARING FOR TRIAL
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 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.
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.
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.
DISCLOSURE OF ASSETS
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.
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 or will advise when the judge will issue a decision.
If, on the return date, the judge decides to re-open the case, 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. You may contact Mediation Services available in your county to assist reaching a settlement in a case.
If the case is settled before the day of trial and the money has been paid, notify the clerk by mail of by fax with a written Notice of Settlement. 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.
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.
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.
PROMINENT STATE LICENSING OR CERTIFYING AUTHORITIES
1. Department of Agriculture and Markets
The Department's regulatory authority includes licensing of and the issuing of permits for:
Manufacturers, wholesalers, and handlers of frozen desserts;
Persons acting as dealers, brokers, or commission merchants for the sale of farm products;
Food processing establishments;
Refrigerated warehouses, locker plants, and fresh foods;
Operators of purebred dog kennels
Anyone who deals in, handles, or transports domestic animals, or operates a livestock auction.
2. Division of Alcoholic Beverage Control
The Division issues licenses and permits authorized by the Alcohol Beverage Control Law for the manufacture, distribution, and sale of alcoholic beverages within the State.
3. Banking Department
The Department regulates all activities relating to the New York State chartered banking industry. The Department also enforces laws and policies dealing with consumer credit and other financial services, the prevention of illegal lending, and other consumer abuses.
4. Commission on Cable Television
The Commission issues confirmation certificates for new franchises, renewals of franchises, and loss of services from a franchise.
5. Education Department
The Department licenses approximately 30 professions, including the following:
Physicians and physicians' assistants;
Dentists and dental hygienists;
Engineers and architects;
The Department also licenses private schools, business schools, and agents for private schools. It registers private schools for handicapped children and all post secondary educational programs, including professional schools.
6. Judicial Branch - Appellate Divisions
The Appellate Divisions conduct proceedings to admit, suspend, or disbar attorneys who wish to practice or who are practicing in the courts of New York State.
7. Department of Environmental Conservation
The Department's principal regulatory programs include: water pollution control; air pollution; radioactive waste control; solid and hazardous waste management; waste transport; mining; public water supply; dams; and protection of freshwater and tidal wetlands, streams, and navigable waters.
8. Insurance Department
The Department issues licenses and permits, conducts examinations, and administers fines relating to insurance companies, agents, brokers, and adjusters, including the following:
Any firm, association, or corporation doing insurance business in the State;
Anyone acting as a life, accident, or health insurance agent;
Anyone acting as an insurance broker;
Anyone acting as an insurance adjuster.
9. Department of Labor
The Department has regulatory jurisdiction in the areas of employee safety and health, employee earnings, and employee coverage under unemployment insurance.
10. Division of the Lottery
The Division has the statutory responsibility to conduct lottery games for the benefit of education and is empowered to license ticket sellers.
11. Department of Motor Vehicles
The Department regulates the registration and titling of motor vehicles and issues drivers' licenses. It also licenses or registers inspection stations, driving schools and instructors, repair shops, dealers and transporters, the vehicle salvage industry, snowmobiles, all-terrain vehicles, motorboats, and unique motor vehicles.
12. Department of Public Service
The Public Service Commission has the power of general supervision of all gas, electric, water-works corporations, and telephone and telegraph lines. Rates for privately owned gas, electric, steam, telephone, telegraph, radio-telephone, and waterworks corporations need Commission approval.
13. Racing and Wagering Board
The Board issues licenses to the following concerning thoroughbred, harness, and quarter horse racing:
Race track employees.
It also issues licenses required to conduct a race meeting with pari mutuel wagering, issues licenses to suppliers and renters of bingo equipment, and games-of-chance equipment, and issues identification numbers for those conducting games-of-chance or bingo operations.
14. Department of Social Services
The Department regulates residential foster care of children, family day care facilities, day care centers for children of eligible guardians, and adult residential care. Special care homes for unwed mothers, victims of domestic violence, and workshops for the blind are all regulated by the Department.
15. Department of Taxation and Finance
The Department is responsible for the registration of:
Alcoholic beverage distributors;
Motor fuel distributors;
Diesel motor fuel retailers and bulk purchasers;
Owners of diesel motor vehicles;
Flea market promoters;
Vendors required to collect sales tax;
Organizations exempt from sales tax.
The Department is responsible for the licensing of:
Wholesale dealers of cigarettes;
State lottery ticket vendors.
The department issues permits for motor vehicles subject to highway-use or fuel-use taxes. It also appoints cigarette tax agents.
16. Department of Transportation
The Department regulates railroads and bus and trucking companies. It also grants licenses to public utility companies for real estate rights on Department of Transportation-controlled property.
PROMINENT LOCAL LICENSING OR CERTIFYING AUTHORITIES
If you desire a list of the most prominent local licensing or certifying authorities, you should contact the court clerk for this information.