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KnowYourRights, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 23417
Experience:  Experience protecting consumers against unfair, deceptive, or fraudulent advertising, marketing and financial practices.
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Facing a civil code violation, If a defendant files a Motion

Customer Question

Facing a civil code violation, If a defendant files a Motion to Dismiss with prejudice, can the defendant include damages in the Motion to Dismiss, and is the Defendant prevented from filing a claim for damages in the future?
Submitted: 2 months ago.
Category: Consumer Protection Law
Expert:  KnowYourRights replied 2 months ago.

Good morning. Can you share what the cause of action is? Also, what damages has the defendant suffered, as a result of the plaintiff?

Customer: replied 2 months ago.
Plaintiff NYS, citing a local code in City of Yonkers, has "constructed a pigeon coop without a permit." Damages to Defendant - there is no pigeon coop in the yard; there is no proof that the Def. has a pigeon coop on her property; Def. is a wildlife rehabilitator, many species use the aviary as a reconditioning flight cage; Defendant's aviary does not conform to the definition of "pigeon coop"; the rule for "pigeon coop" in the CIty of Yonkers is unhumane and inadequate for successful rehabilitation; Def. used guidelines from Plaintiff NYS's own Dept. of Env. Conservation, and federal guidelines for the structure; there is no rule or mention of wildlife rehabilitation in the Yonkers code, Yonkers inspector went to the side of the house without a search warrant, without permission and without an escort (they violated rules for inspectors), Yonkers refused to accept Def's plans, saying "it has a roof, you need an architect," but Yonkers approved several shed with roofs on the same property - Def. feels this is discrimination; Yonkers charges are a misdemeanor, and that's part of her record, she has to disclose these when applying for work; Def. was forced to lose time and employment just to gather info to defend herself; Yonkers did not send the notice (summons/complaint) by personal or certified mail, just regular mail; Yonkers has published Defendant's activities which means the public s aware and can interfere and intrude on her work, despite this being detrimental to the welfare of the wildlife she cares for; Plaintiff does not state that anyone was harmed or suffered loss by her actions. Defendant's character and good standing are damaged (she is chair of the neighborhood association) by these charges. Can she sue for damages if the Motion is dismissed with prejudice?
Expert:  KnowYourRights replied 2 months ago.

Thank you for the additional information. If the defendant has a claim for damages, then they would need to file a counter-claim, against the Plaintiff. Since this stems and comes from the same set of facts, they would need to litigate this and sue for the damages they suffered, by the plaintiff. If the case is dismissed with prejudice, it can not be refiled, so the defendant could not then come back and try and sue, based upon the same set of facts. If the defendant has damages, a counter claim would need to be filed. However, if something happens/changes AFTER the case is dismissed with prejudice, which was not present previously, then they could sue, since it was not at issue at the time.

Customer: replied 2 months ago.
the "relief" damages could not be included in the Motion to Dismiss? Def. will have to refile? Would it be more appropriate to file a Motion to Dismiss without prejudice? Would they be able to go after me again? How can I stop them from re-charging me, and still sue for damages?
Customer: replied 2 months ago.
What is the City of Yonkers adds something to their code that includes wildlife rehabilitation provisions without the City Council's approval? (They have added words and changed things in the past.)
Expert:  KnowYourRights replied 2 months ago.

You could file your counter claim and a motion to dismiss their complaint. Often times though, the Judge will dismiss it without prejudice and allow them to amend the complaint and refile. They would only re-file if there is a legal basis to do sue or else they would be barred, if the matter proceeded and there was no violation. Now, if they amend the code, then it would need to be complied with

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