Westchester attorney guides you through NY Small Claims Court

I sat in court yesterday watching people’s lives unravel: who was being evicted…..who was owed money……who was losing his license!  These are sad times we live in and going to court to enforce your rights can be intimidating for the uninitiated.  I will confess that many attorneys even suffer from “Black Robe Syndrome” but they never let you see them sweat!

So, how can you, as an individual, get what you’re owed without paying a fortune in legal fees?  New York has made Small Claims Court relatively easy and this Westchester attorney is offering you a very rudimentary guide to key points in navigating the judicial waters.

1.  Get friendly with the local court clerk.  Their office is usually located at your local town or village, even city, hall.  Each clerk runs his or her office differently so ask questions and they will tell you exactly what they want and how they want it.  Basically, they will give you a one-page form to fill out and charge you a small filing fee ($10 if claim is $1,000 or less and $15 if it is over $1,000 in towns and villages and slightly higher in the cities) to serve that notice on your opponent.

2.  Who can sue?  Anyone 18 years old or over can sue someone for money damages only in a Small Claims Court in New York.  You must file the claim in the town/village/city where the defendant resides.  In the case of a business, if it is a corporation, it resides where its corporate office is located.

Westchester attorney Lisa Fantino3.  How much can I sue for?  In the towns/villages you can sue up to $3,000 and in the cities, you can sue up to $5,000.  So, if you are a landscaper and a client owes you $3,899 you would have to forgo $899 in order to sue them in Small Claims Court; however, what’s your alternative?  You are not going to file a Supreme Court Action for such a small amount of money.

(NOTE:  You can bring a commercial small claim against a corporation for up to $5,000)

4.  How long will it take to resolve?  Small Claims Court is generally a court of quick resolution.  Unless it is the summer, you will likely get a court date within a month of filing the action and a decision is generally rendered in court if both parties show up for a hearing with support for their respective positions.  However, if the claimant does not show up on the court date, the case will be dismissed and if the defendant does not show, the judge will hold an inquest and evaluate evidence presented before rendering a default judgment for the claimant.  Even if you prevail, an absent defendant can still appeal a default judgment.

5.  What should I bring to Court?  If it’s an accident claim, bring photos, receipts and any other evidence to indicate damage caused and claimed.  If it’s for an outstanding debt, bring any relevant paperwork such as contracts, receipts, bills of sale, even emails or other correspondence to show the agreement between the parties.

Finally, be aware that even if you win in Small Claims Court, you still have to collect the judgment!  Of course, this is just a quick guide and each claim is different.  If you are unsure, it is always best to consult a lawyer.  Your local Court Clerk can provide you with a state pamphlet offering greater detail about the Small Claims Court process and the NYS Court system offers an online guide as well.

What can small business owners expect in 2011?

It’s a game of “Push me-Pull you” when it comes to blaming each other on Capitol Hill.  The Bush tax cuts are set to expire in a big way in 2011 and the Obama camp has been playing with health care for so long that they forgot to look at the taxing situation, if you pardon the pun.  What’s left is a middle American in a desperate situation with a Congress that is extremely divided.

You have Republicans saying Democrats like to tax and spend and you have Democrats saying Republicans only give tax breaks to the wealthy.  Neither is totally right nor wrong, but Americans now are paying for a war against religious fundamentalists and a mortgage crisis that exploded into the stratosphere, not to mention numerous government bailouts, which have all cost us dearly.

 

Small Business costs expected to rise for 2011 / Image: Francesco Marino - FreeDigitalPhotos.net

Come January 1, 2011 the middle class is in a heap of trouble when the Bush tax cuts expire:

The top income tax rate returns to 39.6%;

The max long-term capital gains tax returns to 20%, while those in a lower tax bracket will resume paying taxes on long term gains;

The child tax credit is cut in half to $500; and

The partial credit for payroll taxes is eliminated.

The Obama Administration did manage to pass The Small Business Jobs Act , which was signed into law back in September.  It actually provides a few breaks for small business owners:

There is a larger cap for small business Section 179 deductions – that’s the deduction you can take for qualified business property – it has been increased to $500,000 for 2010 and 2011 but will drop back to $25,000 in 2012;

You will also get a break on self-employment tax which will be reduced by the amount you pay for health care insurance on your own premiums (not those of your employees);

Eliminations of capital gains tax for small business investors who hold their investments for five years;

A doubling of the start-up cost deduction for small entrepreneurs from $5,000 to $10,000; and simplified Cell Phone deductions among others.

I am no financial genius, nor tax attorney, but I’m thinking we should get rid of most of Congress and the IRS and go back to simpler times.  Everyone pays a flat tax rate of 20% with only deductions for health care and mortgages.  As for capital gains, if you are earning any then you should also pay 20% on long term and 25% on short term and losses can be carried forward until they’re absorbed.  It’s easy, simple and can be managed without a PhD in international finance.  Who’s with me?

Westchester attorney advises small businesses on why it’s a good thing to have a legal eagle on your perch

Many small businesses are started and run by well-meaning, intelligent entrepreneurs who know their field well. Some are mom and pop shops and others are million-dollar, yet considered small time, operations run on a shoestring. Either way, these small businesses encounter many of the same problems that large corporations face, such as breach of contract, employee discrimination, collections and small claims matters, just to name a few.  So, what is a small business to do without a budget line for an in-house counsel?

The answer lies in an attorney-client relationship known as outside general counsel. This allows you to call your lawyer on important matters without incurring big legal bills?  How, you may ask?  The relationship is relatively simple.  You engage an attorney under a monthly retainer agreement which allows you to budget a flat rate sum each month for legal fees.  The retainers are individualized and based on your company’s needs, so no two relationships nor fees are the same.

At the initial consultation you will discuss with your new “general counsel” what your needs might be over time.  This will provide the attorney with the information he/she needs to formulate a plan for your legal representation.  One month you might need more legal services than the next but the cost will average out over time for both you and your attorney.

Typical services will include drafting sales agreements, negotiating contracts, drafting and sending letters for collection, corporate formation and organization matters, social media privacy issues, counseling staff on legal issues and representation in small claims court.  Other matters involving litigation, arbitration or major projects generally fall outside the scope of general counsel duties and the fees are negotiated separately.

Retaining a lawyer in today’s climate is a good thing and should not be considered adversarial.  In fact, being able to refer a prospective business partner or client to your general counsel indicates a responsible and established level of business sophistication.