2006 New York Code - Commencement Of Action Upon Commercial Claim.



 
    §   1803-A.  Commencement  of  action  upon  commercial  claim.    (a)
  Commercial claims other than claims arising out of consumer transactions
  shall be commenced upon the payment by the claimant of a filing  fee  of
  twenty-five dollars and the cost of mailings as herein provided, without
  the  service  of  a  summons  and, except by special order of the court,
  without the service of any pleading other than a required  certification
  verified  as to its truthfulness by the claimant on a form prescribed by
  the state office of court administration and filed with the clerk,  that
  no  more  than  five  such actions or proceedings (including the instant
  action or proceeding) have been instituted during that  calendar  month,
  and  a  required  statement  of  its  cause of action by the claimant or
  someone in its behalf to the clerk, who  shall  reduce  the  same  to  a
  concise, written form and record it in a docket kept especially for such
  purpose. Such procedure shall provide that the commercial claims part of
  the  court  shall have no jurisdiction over, and shall dismiss, any case
  with respect to which the required certification is not  made  upon  the
  attempted institution of the action or proceeding.  Such procedure shall
  provide  for the sending of notice of such claim by ordinary first class
  mail and certified mail with  return  receipt  requested  to  the  party
  complained  against  at  his residence, if he resides within the city of
  New York, and his residence is known to the claimant, or at  his  office
  or  place  of  regular employment within the city of New York if he does
  not reside therein or his residence within the city of New York  is  not
  known to the claimant. If, after the expiration of twenty-one days, such
  ordinary first class mailing has not been returned as undeliverable, the
  party  complained  against  shall be presumed to have received notice of
  such claim. Such  notice  shall  include  a  clear  description  of  the
  procedure for filing a counterclaim, pursuant to subdivision (d) of this
  section.
    Such  procedure  shall  further  provide for an early hearing upon and
  determination of such claim. The hearing shall be scheduled in a  manner
  which,  to  the extent possible, minimizes the time the party complained
  against must be absent from employment.
    Either party may request that the hearing be scheduled during  evening
  hours,  provided  that the hearing shall not be scheduled during evening
  hours if it would cause unreasonable hardship to either party. The court
  shall not unreasonably  deny  requests  for  evening  hearings  if  such
  requests  are made by the claimant upon commencement of the action or by
  the party complained against within fourteen  days  of  receipt  of  the
  notice of claim.
    (b)  Commercial claims in actions arising out of consumer transactions
  shall be commenced upon the payment by the claimant of a filing  fee  of
  twenty-five dollars and the cost of mailings as herein provided, without
  the  service  of  a  summons  and, except by special order of the court,
  without the service of any pleading other than a required  statement  of
  the  cause  of  action  by  the claimant or someone on its behalf of the
  clerk, who shall reduce the same to a concise written form including the
  information required by subdivision (c) of this section,  denominate  it
  conspicuously  as  a  consumer  transaction, and record it in the docket
  marked as a consumer  transaction,  and  by  filing  with  the  clerk  a
  required  certificate verified as to its truthfulness by the claimant on
  forms prescribed by the state office of court administration.
    Such verified certificate shall certify  (i)  that  the  claimant  has
  mailed  by  ordinary  first class mail to the party complained against a
  demand letter, no less than ten days and no more than one hundred eighty
  days prior to the commencement of the claim, and (ii) that,  based  upon
  information  and  belief, the claimant has not instituted more than five

actions or proceedings (including the instant action or proceeding) during the calendar month. A form for the demand letter shall be prescribed and furnished by the state office of court administration and shall require the following information: the date of the consumer transaction; the amount that remains unpaid; a copy of the original debt instrument or other document underlying the debt and an accounting of all payments, and, if the claimant was not a party to the original transaction, the names and addresses of the parties to the original transaction; and a statement that the claimant intends to use this part of the court to obtain a judgment, that further notice of a hearing date will be sent, unless payment is received by a specified date, and that the party complained against will be entitled to appear at said hearing and present any defenses to the claim. In the event that the verified certificate is not properly completed by the claimant, the court shall not allow the action to proceed until the verified certificate is corrected. Notice of such claim shall be sent by the clerk by both ordinary first class mail and certified mail with return receipt requested to the party complained against at his residence, if he resides within the city of New York, and his residence is known to the claimant, or at his office or place of regular employment within the city of New York if he does not reside therein or his residence within the city of New York is not known to the claimant. If, after the expiration of thirty days, such ordinary first class mailing has not been returned as undeliverable, the party complained against shall be presumed to have received notice of such claim. Such procedure shall further provide for an early hearing upon and determination of such claim. The hearing shall be scheduled in a manner which, to the extent possible, minimizes the time the party complained against must be absent from employment. Either party may request that the hearing be scheduled during evening hours, provided that the hearing shall not be scheduled during evening hours if it would cause unreasonable hardship to either party. The court shall not unreasonably deny requests for evening hearings if such requests are made by the claimant upon commencement of the action or by the party complained against within fourteen days of receipt of the notice of claim. (c) The clerk shall furnish every claimant, upon commencement of the action, and every party complained against, with the notice of claim, and with information written in clear and coherent language which shall be prescribed and furnished by the state office of court administration, concerning the commercial claims part. Such information shall include, but not be limited to, the form for certification and filing by the claimant that no more than five such actions or proceedings have been instituted during that calendar month, and an explanation of the following terms and procedures: adjournments, counterclaims, jury trial requests, evening hour requests, demand letters in cases concerning consumer transactions, default judgments, subpoenas, arbitration and collection methods, the responsibility of the judgment creditor to collect data on the judgment debtor's assets, the ability of the court prior to entering judgment to order examination of or disclosure by, the defendant and restrain him, and a statement in Spanish that such information is available in Spanish upon request. The information shall be available in English and Spanish. Large signs in English and Spanish shall be posted in conspicuous locations in each commercial claims part clerk's office, advising the public of its availability. (d) A defendant who wishes to file a counterclaim shall do so by filing with the clerk a statement containing such counterclaim within five days of receiving the notice of claim. At the time of such filing
the defendant shall pay to the clerk a filing fee of five dollars plus the cost of mailings which are required pursuant to this subdivision. The clerk shall forthwith send notice of the counterclaim by ordinary first class mail to the claimant. If the defendant fails to file the counterclaim in accordance with the provisions of this subdivision, the defendant retains the right to file the counterclaim, however the claimant may, but shall not be required to, request and obtain adjournment of the hearing to a later date. The claimant may reply to the counterclaim but shall not be required to do so.

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