A Guide to Small Claims Court 2013

A Guide to Small Claims Court
It is really easy to take someone to court and get your money out of them. There is no reason to hire a lawyer when you can do it yourself. Small Claims court is designed for the average citizen to get justice on their own, without an expensive lawyer.

Here is what you need to know.

The staff of the county court and the county judge are not permitted to give you additional information or assist any party in small claims beyond the contents of this pamphlet. Court personnel are not permitted to discuss the merits of your case with you and are prohibited from giving you legal advice about your case.

Small Claims Court

Small claims court provides a prompt and inexpensive way to resolve minor disputes. Legal procedures are held to a minimum and lawyers may not participate. Small claims court is a division of county court and the hearings are conducted by a county judge. Small claims court is limited to civil (non-criminal) actions involving disputes over amounts of money owed, damage to property, or seeking the return of personal property.

Beginning a Small Claim

To start a small claim proceeding you must file a claim form with the clerk of the county court. The form is available at the county court or in PDF format. You may complete the form at the court or you may take it with you and have a lawyer or anyone else help you complete it.
The claim form requires a brief statement of the reasons the plaintiff (the person filing the claim) believes that money is owed or that property should be returned. The defendant (the person being sued) must be properly served with a copy of the claim. The plaintiff must know the defendant’s proper name and whether the defendant is an individual, a corporation, a partnership or other legal entity. If the business you are suing is a corporation, partnership or any other organization, you must identify the person who is authorized to receive this type of paperwork. If you are unsure if the business is a corporation, you may contact the Secretary of State at , be sure to ask for the name of the registered agent and/or officers.If the plaintiff fails to properly identify the defendant or fails to obtain proper service upon the defendant, the claim may be dismissed and the filing fees forfeited. The plaintiff must also provide the best information as to the defendant’s address and must decide whether to have the sheriff serve the notice of the small claim on the defendant or to have it served by certified mail.
The claim form must be signed before a judge, a clerk, deputy or assistant clerk of the county court, a notary public, or other person authorized by law to take acknowledgments. It may be filed in person or by mail and must be accompanied by a filing fee, usualy no more than fifty dollars. In addition, you will be required to pay for service (delivery) of the claim form by sending it through certified mail or by having the sheriff or process server serve the claim form on the defendant You can also have a friend serve the person for you for free, you just cannot serve the person yourself. The clerk will provide you with instructions for certified mail service if you choose to use that method. If you decide to have the sheriff or process server serve the defendant, you will need to make financial arrangements directly with them. You can recover these costs as part of the judgment if the case is successful.
You must file small claims actions in the county where the defendant or defendant’s agent resides or is doing business or in the county in which the cause of action arose. If you file in the wrong court, your case will be dismissed and you will lose the filing fees and prepaid costs. Except for a merchant who is claiming a loss due to shoplifting, a party is limited to filing no more than two small claims within any calendar week and no more than 10 claims in any calendar year.

Parties in Small Claims Actions

An individual, partnership, corporation, union, association or any other kind of organization or entity can be a plaintiff or a defendant in a small claims action.
An individual who is a party to a small claims action must represent himself or herself. A partnership can be represented by a partner or an employee. A corporation may be represented by an officer or employee of the corporation. A union, association, or other organization may be represented by a member or an employee. You may not be represented by a lawyer in small claims court.
You may not file a claim assigned to you by someone else. Only an individual who is directly involved with the transaction may pursue a small claims action.

Counterclaims and Setoffs

When the defendant receives notice of the small claims filing, he or she may file a "counterclaim" or "setoff" with the court. A counterclaim is a statement by the defendant that he or she is owed money or property by the plaintiff. A setoff is an admission by the defendant that he or she owes some money to the plaintiff, but that the plaintiff also owes the defendant money.
If the defendant wishes to file a counterclaim or setoff, the clerk of the county court can provide the proper forms. The defendant must provide a concise statement of why the money is owed by the plaintiff. The defendant must file the counterclaim or setoff with the court and have notice served on the plaintiff at least two days prior to the time of trial. If the setoff or counterclaim exceeds the jurisdictional limits of the Small Claims Court, the case will be transferred to the regular county court docket and set for trial.

Transfer of Cases from Small Claims Court

A defendant in a small claims court action may remove the case from small claims court and have it considered as a regular civil case on the county court docket. The defendant or defendant’s attorney must request the transfer at least two days before the hearing time and must pay the difference in fees between the small claims court and the regular docket of county court. When this is completed, the case is automatically transferred by the court; the law does not permit the plaintiff to object to the transfer. After the transfer, both the defendant and the plaintiff may have a lawyer represent them during the trial. A defendant desiring a jury trial must ask for a jury trial at the time the transfer is requested.


Preparing Your Case

It is the obligation of the plaintiff on the original claim and the obligation of the defendant on the counterclaim or setoff to persuade the judge that their position and claim is valid. Both parties may bring evidence in the form of documents or witnesses to support their side.
You may simply ask your witness to appear in court and testify. If the person is reluctant or if you are unsure whether the witness will attend the hearing, you may make a written request to the court for a subpoena, which will then be served on the proposed witness and will compel the witness to attend the trial.
A witness fee and sheriff’s fees for the service of the subpoena must be paid by the party who wants the witness to testify. If the fee is not paid, the witness is not required to attend the trial and testify. The cost of these fees will be made a part of the court’s judgment.
The following are examples of evidence you may wish to consider in certain cases:
If your case involves poor workmanship, bring in a witness who is knowledgeable about the type of work in question, who does not have a direct interest in your case, and who can testify as to the standards of proper workmanship.In auto accident cases, copies of the police accident report, repair bills or written estimates and photographs of the damages of the accident scene may be helpful.In cases concerning personal injury, medical bills and photographs of the injured party may be beneficial to the court.In landlord/tenant disputes, a copy of the lease, if there is one, as well as receipts or cancelled checks for rent or deposits, and anything else in writing pertaining to the case should be produced. If there is a question as to damages or the condition of the apartment, witnesses and photographs should be considered as well as repair bills and estimates.In cases involving faulty merchandise, any warranties or guarantees that may be applicable should be presented.

How the Case is Handled

Shortly before the time set for your case, advise the county court staff that you are present and ready for trial. They will direct you to the proper courtroom. Although trials in small claims court are generally informal, remember that you are in a court of law and all participants are expected to conduct themselves in a courteous manner. If discourteous conduct or arguments continue after a warning by the judge, the individual may be held in contempt of court and may be fined or jailed.
The plaintiff’s evidence is presented first and then the defendant’s evidence is presented. Present your case in a brief, orderly fashion. If you wish, you may write it out in advance and read it to the court.
Limit your testimony and evidence to issues directly concerning the case. If the judge asks questions, answer carefully and accurately. Do not argue with the judge, interrupt the other party or witnesses, or make personal attacks on any person. The judge will either decide the case at the end of the trial or will take the case under advisement and inform you later of the decision.

Settlement of Cases

In most cases, neither party is one hundred percent right or wrong. You are encouraged to try to settle your case before trial. If a settlement is agreed to, the parties should notify the court prior to the time set for trial and the case will be dismissed or a judgment entered according to your agreement. For the protection of all participants, the notice of settlement and request for dismissal should be in writing. Filing fees are not refundable.


Default Judgment

If the defendant chooses not to appear at the time and place set for hearing and does not request or receive a continuance, the court may, after hearing the plaintiff’s evidence, award a default judgment to the plaintiff without the defendant being present.


Continuances

A continuance (moving the trial to a later date) will be allowed only for good reason. The local court staff can advise you about their policy concerning continuances. Generally, the closer to trial date a continuance is requested the more compelling a reason must be for the court to consider the application.


Appeals

If either party is dissatisfied with the decision of the court, the case can be appealed. The appealing party must comply with the following within 30 days after the entry of judgment:
file a notice of appeal with the clerk of the county court;
pay the clerk of the county court the docket fee for filing cases in the district court; and
deposit with the clerk of the county court a cash bond or a surety bond approved by the court in the amount of $50.00. You will also have to pay for photocopying the county court file which is to be filed with the district court.
The person who appeals may prevent the other side from collecting their judgment until the appeal has been decided, but it is not done automatically by filing an appeal. To do so an additional bond called a “supersedeas bond” must be filed with the clerk of the county court within 30 days after the entry of judgment. In cases involving a money judgment, the supersedeas bond must be in the amount of the judgment, plus costs and estimated interest. In cases involving a judgment for personal property, the bond shall be in an amount at least double the value of the property. If no supersedeas bond is filed, the party who won in small claims may start the collection process as soon as the judgment is entered, even though an appeal is pending.
The appeal will be heard by the district court as a new case and will be retried. This means you will again introduce evidence through witnesses and documents. Both sides may choose to be represented by an attorney during the entire appeal process. Costs of the appeal generally will be charged against the losing party.


Collecting Your Money

Being awarded a judgment does not guarantee that you will ever collect money. The court is not responsible for collecting the judgment. If the judgment debtor (the losing party) does not voluntarily pay the judgment to the judgment creditor (the winning party), the judgment creditor may attempt to collect the judgment through the court process. Voluntary payments from the judgment debtor may be accepted any time.
The clerk of the court has forms available to assist the judgment creditor in collecting the judgment by garnishing wages and bank accounts or execution against the property of the judgment debtor. When the forms are completed, it is the duty of the party seeking enforcement of the judgment to make arrangements with the sheriff’s office for service of these papers and to complete the garnishment or execution procedures. If the case is appealed and the supersedeas bond has been filed, you must wait until the appeal is decided before attempting to collect on the judgment.
If the judgment debtor makes payments to you directly, you should notify the court when payments are completed. Your court may allow the judgment debtor to make payments through the county court.


Garnishments

A garnishment is a proceeding whereby the judgment creditor seeks to obtain funds which are property of the judgment debtor but which are being held by a third party. For example, an employer may be holding wages belonging to the debtor. A garnishment served upon the debtor’s employer may result in the lesser of the following amount being paid into court and distributed to the creditor:
25% of the debtor’s disposable income for the week; or
15% of his disposable earnings for the week if the debtor is a head of a family; or
the amount by which the disposable income for a week exceeds 30 times the federal minimum hourly wage. A garnishment of a bank account results in the total amount of the account up to the amount of judgment and costs being paid into court for distribution to the creditor. Forms for garnishments are available from the clerk of the county court, however, you must know the place of employment or bank with which the debtor does business. If the employer or bank is located in a different county, the judgment must first be transferred to a court in that county.


Executions

An execution is a court order directing the sheriff to seize the debtor’s property. The creditor must determine exactly what property the debtor owns and describe it clearly so the sheriff knows what to look for. Ownership of motor vehicles and certain other types of personal property can be determined at the county clerk’s office. The county assessor and register of deeds office can also be used to locate other personal property and real estate owned by the debtor.
Any property seized for sale to satisfy the judgment is taken subject to the rights of any liens (claims) against that property. The lienholder will be paid before the creditor.
For example, if the debtor owns a car but has a bank loan outstanding and is using the car as collateral for the loan, the bank will be paid first with the proceeds of any forced sale of the car.
County court judgments do not operate as a lien against real estate. If the debtor owns real estate, a certified copy of the county court judgment may be filed in the district court of the county in which the real estate is located. The judgment then becomes a lien on the judgment debtor’s real estate.
After an execution is served and property is seized, the sheriff will advertise a time and place for the sale of that property. The proceeds of the sale will be applied to the expenses of the sale first and then to the judgment.
When you begin a garnishment or execution, you will have to pay fees to the county court which will be added to the original judgment.
Both garnishments and executions are risky for the creditor. Unless the property or debt sought to be garnished is readily apparent, you should talk to a lawyer before trying to enforce your judgment. A lawyer may prepare and file the necessary papers to collect your judgment. A wrongful execution or garnishment may result in a lawsuit being filed by the debtor or some other offended party. The amount of that suit could be significantly greater than the original judgment. If you have any doubt about collecting your judgment, consult your lawyer.

Information for the Judgment Debtor

*Some of your property is exempt by law from either garnishment or execution. You shall have exempt from forced sale on execution the sum of $2,500 in personal property, except wages. The immediate personal possessions of you and your family; all necessary wearing apparel; $1,500 in household furnishings, goods, computers, appliances, books or musical instruments; $2,400 in implements, tools, or professional books or supplies for use in your principal trade or business; and prescribed health aids for you and your family are exempt from execution. Wages in excess of the limits previously discussed under garnishments are protected by law. Also, some income such as social security payments is totally exempt from garnishment.
*If your wages or accounts are garnished or an execution is entered against your property, consult an attorney who can advise you how to protect yourself. It is your responsibility to notify the court of claimed exemptions, and these exemptions must be claimed to prevent the property being applied against the judgment.
If a judgment has been entered against you from a claim that involved a motor vehicle accident, you must make sure the person who sued you notifies the court when you have paid that judgment in full. If the court is not notified within 90 days after the day the judgment is entered, the clerk of the court is required to send a copy of the judgment to the department of motor vehicles. The director of motor vehicles will then suspend your driving privileges and revoke your automobile registration until the court has proof the judgment has been paid.

Bankruptcy

If you have a claim against an individual but are aware that the claim is listed as a debt in a bankruptcy proceeding, you are prohibited by federal law from pursuing your claim in small claims court or pursuing collection on a judgment. Parties who knowingly pursue a claim listed in bankruptcy may be held in contempt by the federal bankruptcy court.
A defendant in bankruptcy who receives notice that he or she is being sued or that collection efforts are being made on a judgment previously entered should notify the court. The defendant must then provide proper documentation showing the existence of the bankruptcy proceedings and that this claim is included. The court will then stay all proceedings related to the case until the bankruptcy case has been dismissed. The clerk of the court has available a copy of the Nebraska Supreme Court rule on Bankruptcy.


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Small claims court

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?
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 around $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
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
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 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 (download in ADOBEACROBAT or WordPerfect 6 or greater) to the clerk of the Small Claims Court, who will give you the necessary information.
A subpoena (download in ADOBE ACROBAT or WordPerfect 6 or greater) 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,"(download in ADOBEACROBAT or WordPerfect 6 or greater) 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 (download in ADOBE ACROBAT or WordPerfect 6 or greater) 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.
SETTLEMENTS
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.
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.
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; * Milk dealers; * 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; * Physical Therapists; * Chiropractors; * Dentists and dental hygienists; * Veterinarians; * Pharmacists; * Nurses; * Podiatrists; * Optometrists; * Engineers and architects; * Accountants; * Psychologists; * Social workers; * Acupuncturists * Interior designers.
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:
* Owners; * Trainers; * Assistant trainers; * Jockeys; * Drivers; * Jockeys' agents; * Veterinarians; * Farriers; * 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.

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