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Gerald, Esq
Gerald, Esq, Lawyer
Category: Legal
Satisfied Customers: 2849
Experience:  30 years of experience
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I sold an item on ebay the buyer is from another state and i

Customer Question

Hi i sold an item on ebay the buyer is from another state and i received a summons in nys where I'm located the summons was to appear in a small claims court ,the summons was served with no complaint .just a summons .what are my choices to file a motion
to dismiss the case .
Submitted: 1 year ago.
Category: Legal
Expert:  Gerald, Esq replied 1 year ago.

Hello,

Thank you for using Just Answer. I want to provide you the best service I can. Please feel free to ask any follow up questions you have.

I am an attorney with 30 years of experience; I hope to provide you information that will help you in resolving your question.

If you have no other contact with NY other than selling a product on Ebay, then you should be able to file a Motion to Dismiss for lack of personal jurisdiction as well as for improper service of process.

Here is a sample that you can use to get an idea what it should look like:

http://www.newyorkpersonalinjuryattorneyblog.com/NYPIAB/wp-content/uploads/2012/03/Memo-in-Support-of-Motion-to-Dismiss.pdf

Read this article for additional information:

http://nysbar.com/blogs/nybusinesslitigation/2011/07/motions_to_dismiss_in_new_york.html

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Good luck.

Please note: Information is educational and not given as legal advice. Only your local attorney can give legal advice. I can't establish or accept an attorney-client relationship with you. All posts are available for public viewing.

Customer: replied 1 year ago.
She served me in New York where I live so are you sure it's a jurstiction issue ?
Expert:  Gerald, Esq replied 1 year ago.

Hello:

Thank you for the clarification. I misunderstood. Did she also sue you in a New York court, or did she sue you in the court in the state where she resides?

If she sued you in New York State then the court does have jurisdiction. If that is the case then without the complaint (which contains the factual allegations), the Motion to Dismiss is limited to lack of service.

You do need to respond and the Motion is the best option. Clearly you can not file an Answer because you do not have any idea what the allegations are.

I hope this clarifies. Please feel free to ask further questions until we get you squared away.

Kind regards,

Gerald

Customer: replied 1 year ago.
Only a summons stating to show up in civil court for a defective item I sold she claims . I am making partial payments thru PayPal as well as a good mans deed . She wants $5000 Im making payments of 100-300 a week already send her 500. But now she got me angry and I want to dismiss the case with out prejudice
Expert:  Gerald, Esq replied 1 year ago.

Hello:

Thank you for the additional information. SInce you are making payments that indicates that you agreed to the return of the product, and the refund of moneys. Since she appears to have acquiesced to payments over time you may be able to have this resolved through the magistrate, You can still file the motion for improper service, but ultimately you will need to appear in court.

Since you have been making payments you may want to argue that she has no claim at this time because she has agreed to payments and you have not missed any yet.

Perhaps you can use this as an opportunity to negotiate a settlement.

In any event, unless you get an Order from the court otherwise, GO TO court on the specified date and time. You would not want to have a default taken against you.

Good luck.

Kind regards,

Gerald

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