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

 
  § 1803-A. Commencement of action upon commercial claims.
    (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 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 county  in
  which  the court is located, and his residence is known to the claimant,
  or at his office or place of regular employment within such county if he
  does not reside therein or his residence within the county 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  to  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  county  in  which  the  court  is
  located, and his residence is known to the claimant, or at his office or
  place  of  regular  employment  within such county if he does not reside
  therein or his residence 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 unreason-
  able 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 fees. The information shall be available
  in  English and, if the chief administrator determines it is appropriate
  or necessary, in Spanish. Large  signs  in  English  and  if  the  chief
  administrator  requires  it,  in  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.