N.Y. Comp. Codes R. & Regs. tit. 22 § 212.41

Current through Register Vol. 46, No. 45, November 2, 2024

Section 212.41 - Small claims procedure

(a) A small claims action shall be instituted by a plaintiff or someone on his or her behalf paying the filing fee as provided in UDCA 1803, and by supplying to the clerk the following information:

(1) plaintiff's name and residence address;

(2) defendant's name and place of residence, or place of business or employment; and

(3) the nature and amount of the plaintiff's claim, giving dates and other relevant information.

(b) The clerk shall reduce this information to a written statement, on a form provided therefor, and shall record it in his or her office. The statement shall be in nontechnical, concise and simple language, and shall be signed by the person who shall have supplied the information contained therein.

(c) The clerk shall give to the person who signed the statement a memorandum of the time and place set for the hearing, which shall be as soon as practicable, and shall advise such person to produce at the hearing supporting witnesses, account books, receipts or other documents required to establish the claim.

(d) Within five days after the action is recorded, the clerk shall send to the defendant by ordinary first class mail and by certified mail, return receipt requested, addressed to one or more of the addresses supplied as shall be deemed necessary, a signed notice bearing the seal of the court, which shall be in substantially the following form:

DISTRICT COURT OF

COUNTY OF

SMALL CLAIMS PART

TO:

Take Notice that

__

asks judgment in this Court against you for $

__

, together with costs, upon the following claim:

There will be a hearing before the Court upon this claim on __, 19, at _ o'clock M., in the Small Claims Part, held at _____

You must appear and present your defense and any counterclaim you may desire to assert at the hearing at the time and place above set forth (a corporation must be represented by an attorney or any authorized officer, director or employee). IF YOU DO NOT APPEAR, JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAULT EVEN THOUGH YOU MAY HAVE A VALID DEFENSE. If your defense or counterclaim, if any, is supported by witnesses, account books, receipts or other documents, you must produce them at the hearing. The Clerk, if requested, will issue subpoenas for witnesses, without fee thereof.

If you wish to present a counterclaim against the claimant, you must do so by filing with the Clerk of the Court a statement containing such counterclaim within five days of receiving this notice of claim. At the time of such filing you must pay the Clerk a filing fee of $3.00 plus the cost of postage to send your counterclaim by first class mail to the claimant. If you fail to file a counterclaim within this five- day period, you retain the right to file the counterclaim until the time of the hearing, but the claimant may request and obtain an adjournment of the hearing to a later date.

If you admit the claim, but desire time to pay, you must appear personally on the day set for the hearing and state to the Court your reasons for desiring time to pay.

Dated: __, 20

Clerk

A Guide to Small Claims Court is available at the court listed above.

NOTE: If you desire a jury trial, you must, before the day upon which you have been notified to appear, file with the Clerk of the Court a written demand for a trial by jury. You must also pay to the clerk a jury fee of $55 and file an undertaking in the sum of $50 or deposit such sum in cash to secure the payment of any costs that may be awarded against you. You will also be required to make an affidavit specifying the issues of fact which you desire to have tried by a jury, and stating that such trial is desired and demanded in good faith.

Under the law, the Court may award $25 additional costs to the plaintiff if a jury trial is demanded by you and a decision is rendered against you.

(e) The clerk shall note on the statement referred to in subdivision (a) of this section the date on which the notice was mailed and the address, the date of delivery shown by the return receipt and the name of the addressee or agent signing the receipt.

(f) If service of notice cannot be effected upon the defendant within four months following the date on which the action was first instituted, the action shall be dismissed without prejudice.

(1) Where all parties appear by attorneys, the case may be transferred to a regular part of court, and the claimant shall pay any additional filing fees required by law. If the claimant fails or refuses to pay such filing fees, the court shall dismiss the case.

(g) Unless the court shall otherwise order, a defendant to whom notice was duly given who fails to appear at the hearing on the day and time fixed, either in person or by attorney, shall be held to be in default, except that nondefault shall be ordered if the defendant or his attorney appears within one hour after the time fixed.

(h) If at the hearing it shall appear that the defendant has a counterclaim in an amount within the jurisdiction of the part for the hearing of small claims, the judge may either proceed forthwith to hear the entire case or may adjourn the hearing for a period of not more than 20 days, or as soon thereafter as may be practicable, at which adjourned time the hearing of the entire case shall be had. An adjournment shall be granted at the request of the claimant if the defendant did not file the counterclaim with the court within five days of receiving the notice of claim.

(i) An oath or affirmation shall be administered to all witnesses. The court shall conduct the hearing in such manner as it deems best suited to discover the facts and to determine the justice of the case. If the plaintiff, or an attorney in his or her behalf, does not appear at the time set for hearing, the court may dismiss the claim for want of prosecution or enter a finding on the merits for the defendant, or make such other disposition as it may deem proper.

(j) Where, after a claim is filed with the clerk, either party to the action desires to implead one or more additional defendants, the clerk shall, upon receipt of the proper fees, issue and mail a notice of claim to each additional defendant under the procedure set forth above.

(k) The undertaking to be filed by a defendant desiring a jury trial shall be in the form prescribed by the relevant provisions of article 25 of the CPLR.

(l) All motions pertaining to small claims shall be made returnable at a part and session appointed for the hearing of small claims, except that a motion to remove a case from the small claims part shall be made returnable in the appropriate motion part in the county division of the court in which the action is pending, and shall be in accord with the rules of the UDCA generally applicable to motion practice.

(m) There may be arbitration of any small claims controversy.

(1) The parties to any controversy, except infants and incompetents, may submit the same for arbitration to any attorney, duly appointed as a small claims arbitrator by the administrative judge of this court, so assigned for such duty at that term of the court, and upon whom they shall agree.

(2) The parties shall sign a consent which shall contain the name of the arbitrator, a brief recital of the nature of the controversy to be determined, a statement that they will abide by these rules, and an affirmation that the decision of the arbitrator is final and that no appeal shall lie from the award. The consent must be filed with the clerk of the small claims part.

(3) The arbitrator shall forthwith proceed to hear the controversy. He or she shall not be bound by the rules regarding the admissibility of evidence, but all testimony shall be given under oath or affirmation. Either party may be represented by counsel, but no record of the proceeding before the arbitrator shall be kept. No expense shall be incurred by the arbitrator except upon the consent in writing of the parties.

(4) After the first hearing, neither party may withdraw from the arbitration unless both parties consent to, or the arbitrator directs, a discontinuance of the proceeding.

(5) The arbitrator shall make his or her award in writing and file the same forthwith, together with an opinion, if any, with the clerk of the small claims part. Unless both parties file a request in writing not to enter judgment, the clerk shall, within two days after the filing of the award, enter judgment in accordance therewith, provided the award has been filed within 30 days from the date of filing the consent. The time within which the clerk shall enter judgment may be extended by a stipulation in writing for a further period not to exceed 30 days.

(6) No fees or disbursements of any kind shall be demanded or received except as hereinabove provided.

(n) The court or a supervising judge thereof may transfer a small claim to any other part of the court for the purpose of subjecting such claim to arbitration pursuant to Part 28 of this Title and rule 3405 of the CPLR. In the event a trial de novo is demanded pursuant to Part 28, the transfer shall be deemed rescinded and the claim shall be heard in the small claims part of the court no later than 30 days after the demand is made unless thereafter it is transferred to any other part of court pursuant to law.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 212.41