civil procedure

Do you Know When a Motion to Dismiss Should be Made?

by Fred Abramson on May 19, 2010 · 1 comment

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.

Wage Garnishment: What should you do?

by Fred Abramson on March 24, 2010 · 5 comments

 

Wage Garnishment is a very powerful tool for either the government (most commonly the IRS), a company or an individual to collect money damages.  If you are a plaintiff in a civil action, if you obtain a judgment you may be able to have the sheriff garnish the wages of the person you are suing.

If your wages have been garnished, the court has the final say on how much money can be withheld from your paycheck. Your employer is powerless to stop your wages from being withheld.

What to do if you do not believe that you owe the money?

  1. Go to the court clerk’s office in the county where the judgment has been entered. In the file there must be an affidavit of service.  The affidavit of service will state the manner in which the lawsuit was served upon you.  In New York Civil Court, after a judgment has been entered, the plaintiff is required to file a notice of entry and an affidavit of non-military service.  The court protects people serving in the military from being subject to a lawsuit while on active duty abroad.
  2. If you have not been properly served and you have a valid defense to the underlying action, you may make a motion to vacate default.   In addition, you may make an order to show cause to have the wage garnishment removed.  It is not uncommon for some law firms to use process servers who “sewer serve.” I reported about this issue a few months back, where American Legal Service was accused by the Attorney General of sewer serving.
  3. Once in court, the judge may schedule a traverse hearing where the judge will determine whether service of process was proper.
  4. You also need to move for a motion to vacate default within one year of the judgment being entered.

What should you do if you want to garnish someone’s wages?

  1. Perform case investigation before starting your lawsuit. If the person you are suing is insolvent, it may not be worth the expense of starting an action against him or his company.
  2. You must obtain a court order.  If you are owed money, in New York you may commence in action in either Small Claim, Civil Court, Supreme Court or Federal Court.  The court where you start your lawsuit is dependent among a variety of factors.
  3. You must then enter judgement with the court.  Be aware that in most cases you can recover costs of the action.
  4. Obtain the name of the employer.
  5. Bring the judgement to the sheriff. The sheriff will garnish the wages.

The Law Office of Frederic R. Abramson practices civil litigation in New York State. If you have any questions regarding wage garnishment, contact me at 212-233-0666.

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NY State Court Civil Litigation- Why Case Investigation is Vital

by Fred Abramson on March 19, 2010

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

Breach of Contract Lawsuit in New York: Quick guide to steps

by Fred Abramson on May 18, 2009 · 1 comment

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 client has failed to pay as per a written agreemtn. 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