Remembering TCPaul, 2016-2019

New York - Basic Procedural Question

Background. I am licensed in NY but I am an out of state att wtretire04/17/19
As my old boss used to say, “Check the rules!” Poin specv31304/17/19
Hi. I will answer your questions as they relate to downstat nyclawyer04/17/19
Thanks. Really helpful. I got a form Stip. As I will be fili wtretire04/17/19
"As I will be filing that first ahead of the Answer" - Yes, nyclawyer04/17/19
Thanks for your help. Appreciated. wtretire04/18/19
I don't find the New York Civil Practice Law & Rules (NY CPL nyclawyer04/17/19
Are you automatically ANSWERING? There is no motion to dismi demwave04/17/19
Good point. S/he has to decide if a motion would be best to nyclawyer04/17/19
Also you do not need a stip if you have written confirmation demwave04/17/19
How would that work? In my jurisdiction if there is no Answe wtretire04/18/19
They won't automatically enter default. The plaintiff has to demwave04/18/19
Yeah, automatic default would be really weird. Courts know t onehell04/19/19
Well, I am working on a consumer credit case right now. The nyclawyer04/20/19
NY procedural rules are dumb. Whatever other insanity we hav therewillbeblood04/18/19
This doesn't sound like malpractice waiting to happen at all lolwutjobs04/18/19
My advice to OP is to bring someone that knows this stuff in superttthero04/19/19
True because s/he could get jammed up later down the line. nyclawyer04/20/19
If your client is signing Affidavits out of state, you will nyclawyer04/20/19
wtretire (Apr 17, 2019 - 11:53 am)

Background. I am licensed in NY but I am an out of state attorney who mainly does transactional work.

I have a client that was sued in NY. I am taking the case to get some litigation experience and as a (paid) favor to the client who has brought me substantial business in the past. Client is aware that I am not an experienced litigator.

I understand that pretty much all documents/motions can be efiled with the Court.

I have not yet entered an appearance, and my simple questions are:

Is there a formal way to enter an appearance? If not, do I simply file my first filing indicating I am representing the defendant?

My client is just about out of time to Answer. I reached out to plaintiff's lawyer and they agreed to stipulate to a 30 day extension of time. I am assuming I need to submit a formal stipulation to the Court to prevent an automatic default. Is that correct?

Appreciate any help I can get. I know the answer's are out there, I am simply swamped with transaction work right now - and once I have my 30 day extension confirmed I will have the time to research the procedure and substance.

Thanks.

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specv313 (Apr 17, 2019 - 1:24 pm)

As my old boss used to say, “Check the rules!”

Point being, every question you’ve asked is likely addressed in the NY rules of civil procedure. In my JX (not NY), specific rules govern how to enter an appearance and whether a stipulation must be filed of record. I’d be surprised if there weren’t equivalent NY rules. I’d also be surprised if NY permits an “automatic default” for failure to file an answer. In the states where I’m licensed, the attorney seeking default actually has to file something to have a default entered. Again, check the rules.

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nyclawyer (Apr 17, 2019 - 1:40 pm)

Hi. I will answer your questions as they relate to downstate (New York City & Long Island). You can simply file the answer and that will formally enter your appearance in the case. With that the court will be notified that you represent the client. Yes, there is a form called a Notice of Appearance, but simply file the Answer. That will be enough.

As for e-filing, if it's Federal court or The Supreme Court of the State of New York you can do e-filing. You cannot in smaller courts such as The Civil Court of the City of New York. An Answer would have to be delivered and filed with the County Clerk's office. I usually bring an extra copy for them to stamp. That way I have my own filed stamped copy. They will stamp both the original and the copy.

Remember you need to file the original papers usually with an original signed verification by the client. You will also need to file an Affidavit of Service (notarized) with the court.

There are rules and procedures where you can sign the verification for your client. And there is a form Affidavit you could file certifying that you as an attorney served the papers. In such a case no notarized signature is needed (but I usually go the regular route).

Yes, you HAVE to file that Stipulation in court signed by both plaintiff's and defendant's lawyer to get the 30 day extension.

We also use litigation backs in New York.

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wtretire (Apr 17, 2019 - 2:56 pm)

Thanks. Really helpful. I got a form Stip. As I will be filing that first ahead of the Answer, I assume that just as the Answer would inform the Court of my appearance, the Stip would suffice as well.

I did look at some efiled cases (to get a good form Stip) and from what I can tell after the Summons and Complaint is filed by the plaintiff, a Stip can be the next filing and then the Answer within the time allowed by the Stip without any notice of appearance.

From the efiled cases I was looking at, seems the Stip does not require sign off by the Judge, is that accurate? In the jurisdiction I am located in the Judge would be required to sign off on most Stips.

Appreciate your help.

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nyclawyer (Apr 17, 2019 - 4:01 pm)

"As I will be filing that first ahead of the Answer" - Yes, file this first AND then the Answer (assuming you're not doing a Motion to Dismiss first like posted below).

"the Stip would suffice as well." -- Yes, the Stip gives your appearance.

"without any notice of appearance." - Yes, that's right.


"In the jurisdiction I am located in the Judge would be required to sign off on most Stips." -- for this type of Stip, no the judge does not need to sign. Just the 2 lawyers and file it. There are some other types of Stips later in the litigation that the judge signs off on.

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wtretire (Apr 18, 2019 - 1:00 pm)

Thanks for your help. Appreciated.

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nyclawyer (Apr 17, 2019 - 1:46 pm)

I don't find the New York Civil Practice Law & Rules (NY CPLR) to be that helpful. It's confusing when you read it. Litigation, at least in my jurisdiction (New York), has to be really learned by doing. That CPLR is not straight forward. And the rules change from court to court - NY Federal Court vs. Supreme Court of the State of NY vs. District Court in Long Island vs Commercial Small Claims or regular Small Claims.

S/he would have wasted valuable time trying to figure all of that out and would have gotten almost no where reading the rules. Sometimes you just need someone to give you a quick answer.

Also, keep in mind that some of the pleadings vary depending on the type of case. For example there is a Notice of Claim that must be filed for personal injury cases. You do not see that filed for breach of contract cases.

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demwave (Apr 17, 2019 - 3:45 pm)

Are you automatically ANSWERING? There is no motion to dismiss to be made? I just hot a NYSC case and I see that they are asking for 16k in damages. Motion to dismiss for subject matter jurisdiction.
When I grant extensions I specifically limit extensions to ANSWERS and not motions to dismiss.

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nyclawyer (Apr 17, 2019 - 4:02 pm)

Good point. S/he has to decide if a motion would be best to do first.

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demwave (Apr 17, 2019 - 5:06 pm)

Also you do not need a stip if you have written confirmation from other side of extension. Also because no run has been filed there is no judge on case YET.

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wtretire (Apr 18, 2019 - 12:59 pm)

How would that work? In my jurisdiction if there is no Answer filed within a certain time frame, the Court will automatically enter a default - without plaintiff being required to move before the Court. If I get email confirmation from the plaintiff's attorney, there will be no automatic default if no response is filed with the Court?

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demwave (Apr 18, 2019 - 5:17 pm)

They won't automatically enter default. The plaintiff has to file a motion for default judgment, file an request foe judicial intervention, serve both of these on defendant and get default order.

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onehell (Apr 19, 2019 - 3:28 pm)

Yeah, automatic default would be really weird. Courts know that parties make their own agreements to extend response deadlines all the time, and you wouldn't think the court would want a filing every time that happened, unless NY is really weird which I wouldn't know.

Plus, a motion to dismiss means you haven't defaulted. The whole point of a motion to dismiss is that you're saying you shouldn't have to answer (which would trigger the start or disclosures and discovery and all that other costly stuff that an MTD seeks to avoid) because the complaint, on its face, does not state a claim. I'm not in NY and have never practiced there, but unless they have a very different notion of what a 12b6 is, I can't imagine getting defaulted for not filing an answer when you have a timely-filed motion to dismiss pending.

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nyclawyer (Apr 20, 2019 - 4:31 pm)

Well, I am working on a consumer credit case right now. The creditor had to file a Judgment by Default and Affidavit of Mailing of the Summons & Complaint. He had to prepare these pleadings to enter the default judgment. So I can say that at least for consumer credit cases there is no automatic default in New York State. I don't know what type of case OP has and if the procedure could be different.

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therewillbeblood (Apr 18, 2019 - 1:54 pm)

NY procedural rules are dumb. Whatever other insanity we have here in Florida, at least our rules are procedure are based on the fed rules and are fairly straightforward.

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lolwutjobs (Apr 18, 2019 - 9:43 pm)

This doesn't sound like malpractice waiting to happen at all

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superttthero (Apr 19, 2019 - 6:59 am)

My advice to OP is to bring someone that knows this stuff in and split the fee.

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nyclawyer (Apr 20, 2019 - 4:32 pm)

True because s/he could get jammed up later down the line. Surprises come up.

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nyclawyer (Apr 20, 2019 - 4:36 pm)

If your client is signing Affidavits out of state, you will also need a Certificate of Conformity to get the out of state affidavit admitted into evidence in NYS. If possible, have the client get his/her signatures notarized inside New York State.

You also need to look into affirmative defenses. Some of these must be pled in the Answer or they are waived. Some must be pled with specificity meaning the who, what, when and how details of the defense.

Since this is an e-filing case, you don't have to worry about the mailing rules and how many days you must mail the Answer (or upcoming motions) in advance for good service.

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