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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 101323
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Hi I am a NY art wholesaler who sold artwork of value $9100

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Hi I am a NY art wholesaler who sold artwork of value $9100 in June 2010 to a gallery owner in SC. Under his contract, governed by NY law, he was obligated to pay me both as a business and also guaranteed the debt personally. After one bounced check and one canceled check, he finally paid a total $6715, leaving a balance of $2385. He disappeared on me in May 2012 and made no further payments. He has now reappeared (I located him). Can I sue him in Small Claims Court for the remaining $2385? Can I do this in NY or does it have to be in SC? If statute of limitations applies, does it begin as of the last payment made? Thank you for any help or advice.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation.

Can I sue him in Small Claims Court for the remaining $2385?

The answer is yes. This sounds like a breach of contract. "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).

Can I do this in NY or does it have to be in SC?

This may be in NY. According to New York Civil Practice Law § 302, any entity is subject to NY's courts if it "transacts any business within the state..." See here. Buying artwork from an NY-based business qualifies, arguably.

If statute of limitations applies, does it begin as of the last payment made?

It begins at last payment made or time the invoice became outstanding/due, whichever is later. In NY, statute of limitations for contracts is SIX YEARS per N.Y. Civ. Prac. L. & R. §213.

I hope this helps and clarifies. Good luck.

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Customer: replied 3 years ago.

Thanks Ely. I saw something about only being able to use Small Claims Court if I can show I have served the claim on the person while they are physically within NY State (even if just visiting). I fear I may have to use SC Small Claims. Does the rule about statute of limitations starting from last payment apply in SC as well (their statute of limitations is only 3 years). -Joe

J,

There may be some confusion by what you mean by "small claims court." In City Court, for example, one must file where the Defendant is. But this is meant for parties generally in the same area.

If you wish to file in SC, you can as well. Under S.C. Code Ann. § 36-2-803, jurisdiction also falls in SC since the Defendant is from there. The jurisdictions overlap. It is not unusual for this, and then the Plaintiff has their "pick" of which jurisdiction to choose.

Does the rule about statute of limitations starting from last payment apply in SC as well (their statute of limitations is only 3 years).

In SC, statute of limitations is three years per §§15-3-520, 530. Like in NY, it begins running from LAST DATE OF PAYMENT or when the balance became outstanding - whichever is last.

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