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Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3821
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I have been involved in an ongoing case in New York District

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I have been involved in an ongoing case in New York District Court, Suffolk County. It began with a "sewer service" and my losing a summary judgment without a chance to defend myself. Ultimately, I had the judgment vacated and my credit report cleaned. The case still remained however. The matter was undertaken by a local attorney owned collection company. The amounts involved were only small claims amounts yet, the matter was pursued in District Court. Ultimately, the judge referred the matter to arbitration, however, the plaintiff submitted a motion for summary judgment and just last week, they received a ruling in their favor from a new judge hearing her first cases.

All along, I have tried to negotiate the matter fairly, however, the plaintiff and their attorney has declined. I feel the ruling was, obviously, wrong and I would like to know what my options are now.

I called the court to discuss with the clerk the options and told them I was no longer living in NY State. They had suggested I stop in and pickup a "appeal package". I told them that would not be possible. I have to call back tomorrow to speak with the head clerk.

Since the plaintiff is unwilling to yield even a little bit and I am certain that they tried to sewer serve me in the first place, I have added in some emotion into this matter to get some satisfaction. Can I:

a. Appeal requesting a jury trial ? Mind you, this is district court and the amount is only $1,500.

b. file a counter claim against the large hospital involved and the physicians involved to get their attention and perhaps, drag them into court to force them to the negotiating table. THey just referred this to a collection attorney assuming that they would not have to actually be involved with "the process".

c. do both of the above to add pressure on them to negotiate the matter?

I realize I am borderline asking for procedural advice here but I am not sure the best method to proceed.

Thanks.
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.
Hi,

Thank you for your question and I'm sorry to hear about this situation.

First of all, when a summary judgment is granted against you as the Defendant, it means that the court found that all the evidence before the court, when viewed in a light most favorable to you the Defendant, shows that there is no issue of fact and that you must be liable.

When the court grants such a motion the case is effectively over and a judgment is issued against you. You will need to appeal the summary judgment. In the appeal you will need to ask for a remand to the trial court for the case to be tried by a jury, but you will need to win the appeal.

At this point, it is too late to file a counter-claim. The summary judgment will become a final judgment against you unless you appeal.

This is why the Plaintiff is not attempting to negotiate with you, because you are not in a good negotiating position and have no leverage on the Plaintiff. In order to gain leverage you will have to file the appeal.
Customer: replied 1 year ago.

Thank you. Is this simply a request for an appeal and will I have to have some hard facts in order to gain one? Is my request for a jury trial enough to gain the appeal? I am just not sure if this is my right (the jury trial) of will I need to include some compelling evidence to gain it.


 


As to the counterclaim. The plaintiff is located in a different county (Nassau). I was living in Suffolk County at the time of their suit. Can I file a new small claim against them in Nassau County separate from this case but related to my differences with them in this matter?


 


Briefly, we used the hospital's human reproduction services to have our first child in 2007 and paid a fortune to conceive our first child. It was our pleasure. However, they told us that we could never conceive a child naturally and we decided to store embryos with them at great annual cost and would use IVF when we were ready to have additional children. As it turned out, we had two subsequent children naturally in 2010 and 2012 despite being told it was impossible. I am not complaining. It is a wonderful experience but had we known, we would not have paid $5,000 plus to maintain the embryos over the years.

Expert:  Zachary replied 1 year ago.
I address your questions below one at a time:

1. Is this simply a request for an appeal and will I have to have some hard facts in order to gain one? Is my request for a jury trial enough to gain the appeal? I am just not sure if this is my right (the jury trial) of will I need to include some compelling evidence to gain it.

A: No, an appeal is a very formal process. You need to file a Notice of Appeal with the court and an Appellate Brief (which explains your appeal). When on appeal no new evidence may be introduced. Your chance to introduce evidence ended with the trial court's summary judgment. If you had evidence that you did not introduce in response to the summary judgment, then you have made an error and an appeal will not help you. If there was some reason that you did not have the evidence to present then you can appeal on the grounds that discovery was not completed and therefore summary judgment was not ripe, but you would have needed to point this out to the trial court in order to have standing to appeal. The court has notified you that there is an appeal package which has the documents you could use to file an appeal. You need to get ahold of these documents.

2. As to the counterclaim. The plaintiff is located in a different county (Nassau). I was living in Suffolk County at the time of their suit. Can I file a new small claim against them in Nassau County separate from this case but related to my differences with them in this matter?

A: Most likely not. The Rules of Civil Procedure generally provide that if you have a counter claim which involves the party which is suing you and your counter claim is about the same circumstances, then you must bring the counterclaim or you waive it. In your situation, your failure to assert the counter-claim before the case was decided in summary judgment waived your opportunity to bring the counter-claim.

You will not be able to assert this claim until you obtain a remand from the appellate court sending the case back for a jury trial.
Zachary, Attorney
Category: Legal
Satisfied Customers: 3821
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Thanks for your help. I dabbled in law and made some mistakes. I still might try to fill out the paperwork for the appellate review but it looks like I am going against the wind now. I will use your services in the future I am sure but will probably consult prior to doing anything next time !

Expert:  Zachary replied 1 year ago.

We are here to help. If you want to use me directly, when you post your question, post it under my profile and start the question with: For ZDNLAW Only.

Good Luck,

ZDN

Zachary, Attorney
Category: Legal
Satisfied Customers: 3821
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 4 other Legal Specialists are ready to help you

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