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 filing system maintained
  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 municipality 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 municipality if he does not  reside  within  such
  municipality  or  his  residence within the municipality 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 municipality 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 municipality 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
  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  the  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,  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.