(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 NYCCCA 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 the 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:
CIVIL COURT OF THE CITY OF NEW YORK
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) Where all parties
appear by attorneys, the case may be transferred to the appropriate county
division of the Civil Court of the City of New York, 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) 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.
(h) 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 no default shall be
ordered if the defendant or his attorney appear within one hour after the time
fixed.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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 NYCCCA generally applicable to motion practice.
(n) 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 an award in
writing and file the same forthwith, together with his or her 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.
