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How to Stop Unsolicited Marketing Calls and Make Money in the Process | Part Five

A Guide to Starting a Self-Represented Lawsuit in New York

Commencing the Lawsuit

 

Step 7. …and start a lawsuit.

Once the deadline set in your demand letter has passed, it is time to file your lawsuit. To do so, you need to draft a complaint, i.e. a document that outlines the facts, your causes of action, and the damages you seek. You can google online for examples. The below steps necessarily relate to New York, but your state court system will likely not be very different.

In the complaint, like in the demand letter, you will need to spell out the amount of damages that you seek to recover for each violation.

Once you have drafted the complaint and calculated your maximum damages, it is time to go to court. Below is a checklist of documents and information that you should take to court:

  • The names and addresses of persons or entities that you want to sue, which we will call the “defendants;”
  • The complaint in triplicate copy; and
  • $45 in cash – in exact change.

The defendants will likely be out of your state, which means that you cannot use the Small Claims Court.[1] If your opponents are in a different state than you, you must use the next higher court, which in New York City is the court for the city of New York. Often it will be the local county court.

When you go to the court, your goal is to purchase an index number (all court cases have a unique index number) and have the court clerk issue the summons. At the court clerk’s office, you need to get in the line that is designated for “self-represented.” When called to the clerk’s window, tell them that you want to bring a lawsuit. My experience is that the court clerks are a wonderful bunch – though overworked and underappreciated, they are government servants who can be enormously helpful if you treat them with respect and courtesy.

The clerk will give you an application for a summons – the New York form looks like this. A summons is a single-page document that tells the other party that they are being sued. You need to provide your name and address, the defendants’ names and addresses, the sum you are suing for, the date of the earliest occurrence, i.e. the date of the first call, and the grounds for your lawsuit. The grounds here are “violations of 47 U.S.C. 227 et seq., see attached complaint.” Then go back to the clerk’s window.

The clerk will review the application for the summons. If everything is in order, she will give it back to you with an application to purchase an index number. The New York form looks like this. The clerk will tell you where to get the index number; in the New York courthouse, it is in room 225. Have $45 in exact change ready and hand the money and the two forms to the cashier. The cashier will take your money, enter the details into the system, stamp the application, and give you a receipt for the payment for the index number.

Take the two forms and the receipt back to the clerk’s window. The clerk will now enter your lawsuit into the system and take your complaint. She will then provide you with a summons. The summons will state that you have commenced a lawsuit and list the details that you have provided in the application for a summons. Review the summons carefully for errors, then sign it if you do not see any. The clerk will make copies of the summons. At this point, ask the clerk to also stamp the two extra complaints as filed – one will be for your records, the other for service on the defendants. The clerk will keep a copy. You’re done with the courthouse for now. You should now have a summons with complaint, stamped with an index number.

However, you have not started your lawsuit. To do that, you must also serve the summons and the complaint on the defendants.

The summons and complaint must be served within 120 days[2] on the defendants at the address that you indicated on the summons, or wherever you can get hold of defendants. This means that someone who is not you personally delivers the summons and complaint. This can be done through the sheriff’s office, though process servers are much faster and more efficient.

Finding a process server is relatively easy through the internet. Serve-Now is a good resource. Service of process usually costs about $60-$90 per person served. Once service is complete (i.e. the process server has delivered the summons and complaint to the defendants), the process server will provide you with an affidavit of service. Check the date on the affidavit – defendants must respond to your summons and complaint within 30 days. Mark your calendar and expect to hear from the defendants within the next 30 days. If you hear from them, continue to Step 9.

Often, defendants will try to avoid service by, for example, not answering the door to a process server. Speak to the court clerk on how to get service on reluctant defendants. Some states allow service on a person of adequate age and discretion at the relevant address or affixing the summons and complaint at the door. If it is a corporate defendant that is registered with the Secretary of State, you may be allowed to serve the Secretary of State instead. Affecting proper service is very important; without it, your lawsuit cannot succeed.

Importantly, as soon as you get the affidavit of service, make a copy and go back to the clerk of the court. Tell the clerk that you wish to file the affidavit of service. The reason for this is that while the time for defendants to answer the complaint runs from the date of service, the time in which you can move for default on the lawsuit runs from the date of the filing of the affidavit of service.[3]

Am I in the right court? There is an issue if the defendants are in a different state than you are. This is an issue known as “jurisdiction,” i.e. when and whether a court will have the right to preside over these parties. When it comes to suing defendants that are outside of your state, the court requires “long-arm jurisdiction.” Different states have different rules on this which you should research prior to filing your lawsuit.


[1] In the unlikely event that the defendants are located in your state, and your damages are below the Small Claims Court cap (in New York $5,000), and the defendants are in the same county as you, you should use the Small Claims Court. The clerks are extremely helpful and will assist you.

[2] C.P.L.R. 306-b

[3] C.P.L.R. 3215


ABOUT THEODOR BRUENING

tbruening@offitkurman.com  |  212.380.4111

Theodor has practiced for a number of years in national and international litigation and arbitration. His practice mainly focuses on dispute resolution in construction, architectural, defamation and commercial cases. He also advises on immigration and labor law.

 

 

 

 

 

 

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