I was just served with a summons with notice claiming that I owe an old friend of mine over $40,000 for breach of contract. I have never been in business with this person or had any written contract. What is the quickest and easiest way of having this frivolous law suit dismissed. We both reside in Queens, NY. Thank you
Country relating to Question: United States
State (if USA): New York
Hello, my name is Ely. I am here to help you. There may be a slight delay between your follow ups and my replies as I type out a reply. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not to tell you what you necessarily wish to hear.I am sorry for your situation. Individuals in your situation may wish to take two steps.1. File an answer. Even if the suit is frivolous, then you still wish to file an answer with a general denial to avoid a default judgment. You can see a sample answer here, and it will work in New York:http://www.northwestregisteredagent.com/lawsuit-answer.htmlMake sure to send a copy to the Plaintiff, and a copy to the court; both certified mail.2. Next, to quickly get rid of the suit, your best bet is to file what is known as a Motion to Summary Judgment. A Motion for Summary Judgment asserts that there is no question of law/fact here, and the Court should dismiss the suit. N.Y. CVP. LAW § 3212. There is no free form online, but you can find such a pleading at sites like uslegalforms.com, or best, XXXXX XXXXX attorney draft it for you.You then file it with the Court, get a hearing date, and serve the other party, and then have a hearing. If the Court agrees, then the matter may be thrown out and you may be awarded any/all costs of the matter.IMPORTANT INFO: Please use REPLY TO EXPERT to keep talking, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Is this going to require me to obtain a lawyer and appear in court at some time or can it be dismissed through filing papers?
Jarret,While you do not have to retain counsel, it is highly recommended; and yes, a Motion for Summary Judgment will typically require at least one hearing, I am afraid.
This person has loaned me some money over the years, a few thousand here and there and I have paid him back. But his claim of $45,000 is absurd. Is there any way that I could be liable for this amount on his word? We had discussed opening a business together in the past but it never came to fruition.
Jarret,He would have to show that this was a Loan contract between the two of you, and that it was breached by you in not repaying. Under New York law, an action for Breach of Contract requires proof of (1) a contract; (2) performance of the contract by one party; (3) breach by the other party; and (4) damages. Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994) (applying New York law).Verbal contracts are also enforceable, but are much harder to prove.Unless he can do this by a preponderance of the evidence, then he cannot win.IMPORTANT INFO: Please use REPLY TO EXPERT to keep talking, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
I just figured out that he has loaned me a little over $20,000 over the years but I have always paid him back with interest. These loans were always cash and were paid back by me in cash with nothing written down or any type of records. If I'm asked I won't lie about these loans but what if he lies about me paying them back?
Jarret,It would be your word against his... it really is a he said/he said situation. It would simply come down to who is more convincing...
So you're saying that even without any written proof of any transactions I could owe this person money if his lies are convincing? Should I just "not recall" that any monetary transactions were ever done between us?
Correct. However, the onus is on HIM to prove this by a preponderance of the evidence. If you deny the allegations,who is not to say that these were gifts, etc?
Thank you so much for all your advice.
My sincere pleasure. Best of luck.
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