In New York State, only approximately 3 percent of all cases filed in Supreme Court are disposed of after a trial. If you have a business dispute, your goal is to come to a resolution as quickly and as inexpensively as possible. If you have been involved in a lawsuit before, I am sure you know why this makes sense.

As an attorney, one of my responsibilities is to discuss with you the costs of a lawsuit. The basic costs of a lawsuit may include the following:

• Court Costs
• Attorney Fees
• Expert Witness Fees
• Court Reporters

A young gentleman contacted my office today and informed me that he received some legal documents in his e-mail. Upon reviewing the offending message, I noticed it was a summons and complaint. If you are not in the know, in New York  the first legal papers for instituting a lawsuit is called a summons and complaint.  He wondered if it was necessary to answer the complaint.

The simple answer is no, at least not yet. The rules governing proper service of a lawsuit are embedded in the CPLR. Here are the basic provisions for service of process:

CPLR § 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause

CPLR § 312-a Personal service by mail
(a) Service
(b) Completion of service and time to answer

CPLR § 301 Jurisdiction over persons, property, or status

CPLR § 302 Personal Jurisdiction by acts of non-domiciliaries

CPLR § 308 Personal service upon a natural person
(4) Nail and Mail

CPLR R. 305 Summons; supplemental summons, amendment

Since he was served by email, service was improper and he does not have to answer. However, Randall Harris, senior deputy counsel for Los Angeles County, says it is time for the law to catch up with technology.

Law Technology Today reports that Harris advocates for a change in court rules, to allow the use of e-mail for notification of hearings in child dependency matters. “The law should be modernized to keep pace with technology and the wireless reality of the 21st century. Having no physical address should no longer be a barrier to receiving due process,” he argues, in “The Case for Providing Electronic Notice in Child Welfare Proceedings.”

What do you think? Should service of process of a lawsuit be permitted by email?

Update: Over on Twitter, Jim Brasher, Esq. has noted that in  SNYDER and Snyder Energy, LLC, v. ALTERNATE ENERGY INC., Corporate Energy Investing Inc., and Peter J. Nelson, 19 Misc.3d 954, 857 N.Y.S.2d 442, 2008 N.Y. Slip Op. 28137 the court allowed for email service under limited circumstances.

The Law Office of Frederic R. Abramson practices civil litigation in the State of New York. You may contact me at 212-233-0666.

You know that litigation could be expensive.  If your attorney is a Linchpin he will always present an analysis of the costs of defending a lawsuit to you.  Great attorneys are often able to limit the costs of litigation while continuing to defend you aggressively. Bad attorneys make lots of money by drafting unnecessary motions.

Some judges don’t allow for discovery motions, preferring issues such as the re-scheduling of depositions to be resolved at a conference. “Snake” attorneys will make the motion anyway, viewing it as a billing opportunity.

If you are subject to a lawsuit, one of the tools in your lawyers’ toolbox is a motion to dismiss. If you win a motion to dismiss, your case is over in one sweeping step.  However, if you lose and your motion is denied, your litigation costs become more expensive.  The rule outlining a motion to dismiss is CPLR section 3211. Because of its costs, the decision of whether you should make a motion to dismiss should not be taken lightly.

What should you look for when making a motion to dismiss?

• You should first review and pick apart the complaint.
• Does the plaintiff (the person who is suing you) state a cause of action?
• Are there any legal defects to the complaint?
• Does the complaint make factual sense?
• Do you have all the facts? In many cases, you need paperwork from the plaintiff, such as a contract.
• Does the court have the right to hear the case?
• Are you or your company subject to the court’s jurisdiction?  For example, if your company is being sued in New York but has never conducted business there, a motion to dismiss could be appropriate.
• Statute of Limitations. The action may not have been timely filed.

What you need to tell your Attorney

• If you company has been sued, find out the person who has the most knowledge regarding the lawsuit.
• Write a detailed summary of the facts
• Notify him of any witnesses with their address, email address, Twitter account and phone number.
• Provide all documents related to the lawsuit.

When is winning a motion to dismiss a waste of time and money?

Just because a motion to dismiss can be made, doesn’t mean that it should. There are times when winning a motion to dismiss will not dispose of the case

• If you were improperly served, but the case is still well within the statute of limitations, the plaintiff can simply re-serve you.  
• If there is a technical defect which can be easily changed by an amended pleading, such as the misspelling of your name?
• In some instances, by making a motion to dismiss you may alert the plaintiff of your defenses or missing information.

When should you make a motion to dismiss even if you will probably lose?

• For tactical reasons, you may decide to show the opposition that you are ready to go to war.
• You can obtain facts about the case earlier than waiting for formal discovery, which could take years.

As a defendant, you should always look to settle the case before a motion dismiss is made or an answer is filed. The vast majority of cases are settled before trial.  Everyone is aware that the settlement is not a sign of weakness because of the high cost of litigation.

If you or your company has been subject to a lawsuit, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.

You probably spend much of your time at work in front of a computer. When you are on the run, you use your Blackberry or iPhone for both work and pleasure. But who owns the data that is created, viewed and stored while working?

If you work in New York for a private company, you have a reasonable expectation of privacy for your electronic devices, work computers and cellphones. This is especially the case when the company that you work for does not have a policy regarding internet usage. As a result, I have been advising companies to cover their bases by clearly and specifically drafting internet usage policies that explains their employees expectation of privacy.

Restrictive internet usage policies usually include the following:

1. All the data that is stored on work computers is company property;
2. Employee’s have no expectation of privacy;
3. The Employer may monitor its employees computer usage without their knowledge.

The law regarding restrictive internet usage policies have been looked at with increasing scrutiny by the courts.  For example, a recent court ruling did not allow an employer to access the Hotmail account of its employee.

Despite a written internet usage policy, employers are not immune from potential lawsuits from employees. Listed below are restrictions that employers should be aware of:

• PRIVILEGED DISCUSSIONS. Discussions regarding attorney-client communications may continue to be privileged.  If an employee is using the internet for legally permitted employee, like union organizing her communications may be privileged.
• DISCRIMINATION. Be aware that you cannot treat your employees differently while monitoring their computer usage.
• ACCESSING PRIVATE ACCOUNTS. You cannot access your employee’s Twitter account simply because they accessed their account at work.
• NEW YORK STATE LAW. Believe it or not, New York State does not have an invasion of privacy law.  Be aware that you cannot fire an employee simply because she tweets.

Be aware that case law is changing on this subject.  As a word of caution, use your common sense and think about the golden rule.

For more reading:  Who Owns all the data in the Workplace

If you have any questions about who owns your data at work, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.

If you are planning to start a lawsuit in New York State Court, one of your first tasks is helping you lawyer investigate the facts of your case.  Believe it or not, case investigation of your civil litigation matter begins before you walk into your lawyers door and may not end until a judgement has been entered and money has been collected.

There are 2 ways of case investigation:

1. Informal fact gathering;
2. Formal discovery requests as per the CPLR. These discovery requests are generally made when a lawsuit has been commenced.

Why is fact investation important:

• It’s the law.  An attorney cannot bring a lawsuit in New York without making a reasonable investigation that your claim has merit. If you decide to bring a lawsuit without merit, you can be subject to civil money penalties by the judge.
• It helps the lawyer research the proper areas of the law.  You may believe that you have a simple case where the company that you would like to sue owes you money and they have no defense. However, a full investigation of the facts may reveal that they have a defense, such as the good that you sold to them were not delivered timely.

In New York State Court civil litigation, there is usually little argument about the law. Based on my experience, the side that is able to present the most facts, and present the most logical and pursuasive argument usually wins.  Since the vast majority of New York civil litigation cases are settled before trial, it is especially important to convince opposing counsel that the facts of your case are overwealimingly in your favor.

A good lawyer will understand the court’s rules, knows what it takes to uncover evidence helpful to your case without intervention (such as gleaning evidence from social networks) along with the tenacity to press the court to obtain all the evidence to help your obtain your desired outcome.

The Law Office of Frederic R. Abramson represents both plaintiffs and defendants in New York State Court in civil litigation. If you have any questions regarding starting or defending a lawsuit in New York, contact me at 212-233-0666

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The constuction industry is subject to more than its fair share of litigation. This not because the people who you work with are bad people (even though there a few bad apples). It is because industry itself if very complex.

There are many factors of what makes a project sucessful.  A successful project may not have anything to do with the parties involved. This includes anything from material shortages to the weather.

The people and companies involved in any given construction project are independent and often have competing business interests. The owner, contractor and architect are often at odds.

The time for an owner to begin thinking about construction litigation, which includes its avoidance, alternatives and costs is at the very beginning of the construction project. Obviously, the most important goal is to limit the possibility of a lawsuit as the most basic goal.

Unforutantely, due to the unpredicable nature of construction projects and the number of people involved in any given project there are likely to be disputes.

The time to consider litigation occurs before the point of confrontation. As an owner you should try to avoid it as much as possible by being aware of its possibility. You can do this by being careful about the people who you hire, and to define the legal rights and obligations of everyone involved in the project.

As an owner, the ability to  avoid a construction lawsuit is made likelier by the following:

• A comprehensive background check of all the participants
• A strong set of contracts that is uniquely drafted to suit your needs. This means you should avoid using the same agreement for each project and should be aware of independent contractors.
• Setting out before the project each parties administrative duties and obligations. 

You should be aware that even a contract that is drafted with every considering in mind will not inherently protect you from a lawsuit.  However, with careful planning, the likelihood of your company being involved in a costly lawsuit diminished greatly.

The Law Office of Frederic R. Abramson represents both owners and contractors in drafting contracts and construction litigation. If you have any questions, call at 212-233-0666

The New York Court system does not make it easy to find judges room and phone numbers.  Check out the New York State Uniform Court  System website and you will see what I mean.  The site itself is quite byzantine.

Knowing the judges room number is especially important when you are running to court for a court appearance and you are pressed for time. The court often fails to notify you of any room and phone changes. As a service to you, I have spent some time compiling a list of the latest phone and room numbers for all of the Judges in Kings County Supreme Court.

Below is a list of all of the Kings Supreme Court Judges court part addresses and phone numbers:

The Law Office of Frederic R. Abramson provides litigation services for businesses and individuals and  handles court appearances for lawyers in New York City and Long Island. For more information, call my office at  212-233-0666.

Whether you are a plaintiff or defendant in a lawsuit, nearly all cases are settled before trial. The question then becomes, when should you settle a case?

There is no “one size fits all” answer as to when you should start discussing settlement with the other side.   Each case is different and involves using different types of negotiation strategies.  However, early case evaluation can lead to sensible conclusions as to what the appropriate settlement should be.  This can be accomplished even in the early stages of litigation.

Here are some possibilities:

• If you come to the conclusion that  the other party is reasonable, you may be able to quickly come to a settlement and should start negotiations early, often pre-suit.  Why bother with litigation costs if your adversary is likely to behave rationally? This often occurs if the company that you want to sue is established and the matter is simple.
• On the other hand, there are times when your case is complex and that discovery is needed to fully evaluate what a proper settlement figure is.  If the company that you want to sue is hiding information, then  it would be prudent to procede to litigation and perhaps start discussing settlement after receiving the necessary documents.

Generally, if you have a rational adversary,  the smaller your case,  the easier it is to settle in the early stages.  

Breach of contract occurs when a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party’s performance. If the party does not fulfill his contractual promise, or has given information to the other side that he will not perform his duty as mentioned in the contract or if by his action and conduct he seems to be unable to perform the contract, that party is said to breach the contract.

An example of a breach of contract lawsuit is when a web designer that you hired failed to deliver the new web 2.0 apps on your website as agreed to in your written contract failed to deliver your app. What should you do?  First you should see whether the other side has any defenses. Should you call a lawyer and start a lawsuit?

Below, is quick guide that summarizes the basic steps, legal process and expenses of a breach of contract lawsuit.

Legal Steps:

1. Prove existence of Agreement;

2. Prove breach of Agreement (failure on one side to perform or pay);

3. Prove damages due to breach (loss of profit, damage to business).

Legal Process:

1. File Complaint with the Court;

2. Defendant answers the Complaint, and could start a counterclaim;

3. Period of Discovery which are oral and written questions from each side. Interrogatories and Bills of Particulars are written discovery. Depositions are discovery interviews.

4. Discovery conferences. For example, in New York County, you will have a preliminary conference and a series of compliance, status and settlement conferences.

5. Motions requesting certain relief. For example, a party may make a summary judgment motion if they believe that there are no issues of fact and that they are entitled to judgment as a matter of law.

6. Trial

Expenses:

1. Timeframe: Between 1 and 5 years.

2. Retainer: A common breach of contract retainer is between $5 and $20 thousand dollars.

3. Court costs: Between $500 and $10,0000.00.

4. If a case proceeds to trial, $20-$100,000 is not uncommon.

If you have any questions regarding a breach of contract, contact me at the Law Office of Frederic R. Abramson at 212-233-0666

Just because you entered into a valid contract with a company does not mean that your contract is secure. According to Crain’s New York Business, more companies are going out of business than ever before. Many are doing so without any notice. Bankruptcy filings alone have tripled in the last year. You contact the company up one day, and they are gone. Before you decide to pack it in and think there is no recourse, here are a few tips:

1. Determine the form of business ownership for the company. If the business had been established as a sole proprietorship or partnership, the partners remain personally liable. As a result, you may commence a lawsuit against them personally. If the business had been a corporation, to reach the personal assets of the owners, you have to “pierce the corporate veil.” This legal cause of action allows you potentially obtain a judgment from the personal assets of the corporate owners.

2. For any credit card transactions, contact the credit card company and ask for a refund for any goods or services not rendered. Usually, the credit card company limits the time in which a dispute must be made to 60-90 days from the date of the charge. If you paid in cash, or check, you can file a claim in bankruptcy court, if the company has filed for bankruptcy. However, this will be a lengthy process, and you may receive pennies on the dollar, if that much.

3. Look to the dissolved companies industry professional groups. A variety of organizations have plans requiring its members to reserve funds.

4. Read over your any business insurance policies regarding coverage for business losses.

5. Search the status of any class action lawsuits.

6. Contact the city, state, and federal government. There are numerous regulatory agencies that may provide assistance in obtaining recovery for losses.

7. Be aware that a company may dissolve and reorganize under another name to avoid debts. Under the “Alter Ego” doctrine, the courts may impose liability on the shareholders of the new company for the debts of the dissolved company.