(a) A
commercial claims action may be brought by a claimant that is:
(1) a corporation, including a municipal or
public benefit corporation, partnership, or association, which has its
principal office in the State of New York, or
(2) an assignee of any commercial claim,
subject to the restrictions set forth in UCCA 1809-A. The action shall be
instituted by the claimant or someone on its behalf by paying the filing fee
and the cost of sending the notice of claim as provided in UCCA 1803-A and by
filing and signing a written application containing the following information:
(i) claimant's name and principal office
address;
(ii) defendant's name and
place of residence or place of business or employment;
(iii) the nature and amount of the claim,
including dates and other relevant information; where the claim arises out of a
consumer transaction (one where the money, property or service which is the
subject of the transaction is primarily for personal, family or household
purposes), information showing that the transaction is a consumer
transaction;
(iv) a certification
that not more than five claims have been instituted in the courts of this State
in the calendar month; and
(v) in
the case of a commercial claim arising out of a consumer transaction, a
certification that the claimant has mailed a demand letter, containing the
information set forth in UCCA section 1803-A, no less than 10 days and no more
than 180 days prior to the commencement of the claim.
(b) Unless the clerk shall require
the claimant, pursuant to UCCA 1810-A, to apply to the court for leave to
prosecute the claim in a commercial claims part, the clerk shall reduce to a
concise written form and record in a special docket the information contained
in the application, and 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. The clerk shall advise the claimant of the right of the claimant or the
defendant to request an evening hearing, which shall not be so scheduled if it
would cause unreasonable hardship to either party, and the clerk shall schedule
the hearing so as to minimize the defendant's time away from employment. In the
case of a commercial claim arising out of a consumer transaction, the clerk
shall mark the claim conspicuously as a consumer transaction and shall record
it in the docket marked as a consumer transaction.
(c) Within five days after the action is
filed, the clerk shall send to the defendant by ordinary first class mail and
by certified mail, return receipt requested, at one of the addresses required
by UCCA § 1803-A, as shall be deemed necessary, a signed notice bearing
the seal of the court, which shall be in substantially the following form:
CITY COURT OF THE CITY OF ____
COUNTY OF ____
COMMERCIAL 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 Commercial 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. (You may request that the hearing be scheduled during evening
hours if you do so within 14 days of receipt of this notice.) 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.
Read the attached sheet for more information.
Dated: __, 20_
Clerk
A Guide for Commercial 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.
(d) The clerk
shall note on the application 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.
(e) If, after the expiration of 21 days (30
days in the case of a commercial claim arising out of a consumer transaction)
from the date the notice was mailed, the ordinary first class mailing has not
been returned as undeliverable, the defendant shall be presumed to have
received notice of the claim.
(f)
If service of notice cannot be made 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, either in person or by attorney, at the hearing on
the day and time fixed, shall be held to be in default, except that no default
shall be ordered if the defendant or his or her attorney appears within one
hour after the time fixed. Notice of the default judgment, containing the
information set forth in UCCA section 1807-A, shall be mailed by first class
mail to the claimant and the defendant. The defaulting party may apply to have
the default vacated by submitting a written request to the court; proceedings
on default shall be governed by, but not limited to, section 5015 of the
CPLR.
(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 claimant, 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 commercial
claims shall be made returnable at a part and session appointed for the hearing
of commercial claims, except that a motion to remove a case from the commercial
claims part shall be assigned to a judge in the manner authorized by the Chief
Administrator.
(m)
There may
be arbitration of any commercial 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 commercial 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 commercial 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 commercial 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 commercial 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 commercial 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.