N.Y. Uniform District Court Act § 1803-a: 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.