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Civil Litigation
Q: The statute states I have seven days to respond by filing papers. Does this include holidays or weekends?
Mitchell’s Answer: Each day is included. However, in the event the last day to serve or file occurs on a court holiday or a weekend, the time is extended to the next business day.
Q: I have sued my former boss and he has offered a settlement. Can I still collect the court costs if we settle before court?
Mitchell’s Answer: If you accept the offer, then you cannot pursue the court costs. You may elect not to accept the offer and continue with the litigation to collect it all.
Q: The landlord submitted an affidavit that my roommate served me. I know she didn’t! Can I call her into court to testify?
Mitchell’s Answer: Absolutely! You should file and serve a motion to dismiss for lack of jurisdiction and demand a traverse hearing.
Q: I was named as a co-defendant in a suit against my father. The judge dismissed the case against me. I am now being subpoenaed to produce documents. Is this allowed?
Mitchell’s Answer: If you are being requested to produce relevant documents, and if you are in possession of these documents and it is not unduly burdensome, then you must comply. You should speak with an experienced civil litigation attorney and present him or her all the papers so that you may get proper legal advice.
Q: How many times may plaintiff & defendant file affirmations/affidavits in opposition to the other on an Order to Show Cause.
Mitchell’s Answer: Each party is allowed one opportunity to oppose any motion.
Q: The civil case against me for non-payment of a credit card bill was dismissed. What is the statute of limitations for the plaintiff to recommence the action in New York?
Mitchell’s Answer: For a breach of contract action, the statute of limitations is six years from either the date of default, last payment, or an acknowledgment of the debt.
Q: I am the plaintiff in a lawsuit and the judge rendered a decision in favor of the defendants who never answered the complaint. How did this happen?
Mitchell’s Answer: Possibly your papers were defective, or perhaps you failed to meet your burden of establishing a cause of action upon which relief may be granted. If the case was dismissed without prejudice, you may wish to hire an experienced lawyer to represent you, and make certain it is done right the next time.
Q: May I submit a Notice of Motion to enter a Default Judgment with prejudice?
Mitchell’s Answer: The good news is that a default judgment entered in New York may not be appealed. I understand that you believe the defendant has no defenses or merits and there are no triable issues of fact. Unfortunately, if the defendant does not appear the judgment could be vacated upon excusable neglect and a meritorious defense.
Q: How do I reject an answer that was served late?
Mitchell’s Answer: You may return the original pleadings received together with a Notice of Rejection stating the reason for the rejection followed by filing with the clerk together with an affidavit of mailing on the adversary.
Q: My house has very little equity and I have been sued in a foreclosure action. I don’t live in the house. Do I have to appear?
Mitchell’s Answer: If you do appear or hire a lawyer to do so it will probably lead to entry of a judgment of foreclosure against you. You should try to sell as quickly as possible so that costs do not chip away at the remaining equity. The lender may pursue you for a deficiency, so, you should at least see if they will accept a deed in lieu of foreclosure.
Q: When must a Note of Issue be filed in a civil court case in New York State Supreme Court? I was told that it is filed after the case is over, but someone else told me that it is filed before the trial.
Mitchell’s Answer: There appears to be confusion between the “Note of Issue” and “Notice of Entry”. The Note of Issue must be filed to place the matter on the trial calendar. A Notice of Entry must be filed to commence the time for an appeal of a decision, order or judgment upon the party that may wish to appeal.
Q: My cousin purchased a car in my name because he has poor credit. How do I transfer the car to his name so that he pays the loan?
Mitchell’s Answer: Either, a) YOU bought a car under your name, or; b) your cousin committed FRAUD. There is no legal basis for you to assign liability of the loan while relieving your own obligation.
Q: I received a Summons and was told I don’t need to answer until there is a court date. Is this correct?
Mitchell’s Answer: No, it is not. Indeed, you must answer the complaint if you are named as a defendant. If you fail to do so a judgment may be entered against you on default. Consult with an experienced attorney immediately as this is time sensitive.