How is a civil court action commenced? I understand small claims court, but the loss to myself is over $10,000.00, so that does not apply. Where do I go?
First off go right to your local attorney’s office and ask for help. Once you get out of Small Claims Court monetary limits you are into the Supreme or County Court, depending on the type of action. In these Courts the rules are very precise, and you are best served to have an Attorney help you through the process.
To start an action in the Supreme or County Court you need to file a Summons in the County Clerk’s office, with a request for an Index Number. (Cost $210). This officially starts the action. The original summons is filed in the Office, and you need to secure back a time-stamped copy proving that the original is filed. This Summons is then served, generally with a complaint, on the Defendants (service fees vary but figure about $50 per person served). Once a Summons is served, the Defendants have 20 days from the date of service to respond. (30 days if any of the Defendants reside out of State). There is no set return date in the Court, the Summons is merely answered by the Defendant’s Attorney filing an Notice of Appearance and/or Answer with the Plaintiff’s Attorney, and with the County Clerk. The Defendant should also secure a time-stamped copy of the filed Answer for their file.
Once an Answer or Notice of Appearance has been received, the matter is now ‘contested’. What happens next is the discovery process. During the discovery process both sides of the action request and search out information from each other and third parties to prove or improve their respective positions. During this time process there also will be various motions filed with the court to request specific intervention by the Court. (To Request any Judicial Intervention in an action the cost is $95, and each motion costs $45).
After discovery has been completed, then the matter is referred to a Judge for the Judge’s review of the matters, and the Judge’s position concerning how they might settle the action. If the Judge can not secure a settlement between the parties, then the matter is scheduled for a trial (with the filing of a Note of Issue cost $35). If a jury is requested there is also an additional fee for that.
At this point the matter is set for trial, with the Judge continuing to talk to both parties attorneys to see if some sort of compromise or settlement can be figured out. At the time of trial each party presents their witnesses (who may have to be subpoenaed at a service fee of around $50 each and a witness fee of around $20 each). Experts have to be hired to testify at their standard rate (doctors generally get around $500/hour plus expenses).
After testimony is received, then the tier of fact (Judge in a bench trial or jury in a jury trial) determines who is right and who is wrong. Then the issue of damages is addressed, and a determination is made as to how much money the Plaintiff will receive…if anything. Note: if the Plaintiff loses there are penalties for the Plaintiff, such as the Plaintiff having to pay all of the cost of the action to the Defendant, including the Defendant’s attorney fees. There are no guarantees once a matter is headed for trial.
During all of the above different rules apply for different types of law suits. Discovery requirements are different, as are time-periods and expenses. That’s why major lawsuits generally require the assistance of an Attorney. Keep in mind, that this is just the law suit part of the action, it is not the collection portion, which is separate, and just as complicated…and costly. Good luck.
As always this is a general answer, to a general question. You should always consult your attorney about the specific issues that surround your specific needs.
If you have a question for Attorney Kukuvka, please forward it to: Cynthia M. Kukuvka, Attorney at Law, 330 E. Main St, Palmyra, NY 14522 or e-mail to cklaw@verizon.net.