Proper venue???

What is the name of your state? I live in NY state, and recieved a booklet from the attorney generals off stating that a defendanyt must be sued in an area near where he lives or works.
In short, I`m being sued for stopping payment to an auto mechanic who took 7 weeks to put in a new engine, which promptly overheated, and after a week to fix it , did so again. I chose to be towed by another mechanic, who put in a different engine, and now it works!
This first mechanic wants a "restocking" fee, and labor for what (ever) he did.
He is sueing me in the very town where <b>he </b>lives!...and it happens to be over the line in a different county to boot!
I wrote the judge , asking if it was in the wrong venue, and got no answer,...that was three weeks ago. I called last week, and left a message about this on his machine,...no answer. The trial is next week!

I don`t want to say that this "judge" is a fishing buddy of the mechanic,...but,...who knows? My suspicions are only aroused by the no-response from the judge.

What should I do next? Perhaps get a notarized letter and send that to the Judge via certified mail? Should I do this in case I have to appeal,...(who am I kidding,...I can`t afford to appeal....8^(

PS can I use a taped phone conversation as evidence?

Quit writing 'letters' to the court. They mean nothing.... and in fact most judges are prohibited from reading 'ex parte' communications.

File a Motion to Dismiss based on Venue with the court and the plaintiff. Cite the state law that says the case must be filed in your HOME county. Ask the judge to rule on the motion prior to the case being heard. If you don't hear back from the court in time, show up as scheduled and advise the court that you have a motion before it to be heard PRIOR to the hearing.

As for your 'taping' question, NY is a one-party state which means that your tape should be admissable as long as ONE party (you) was aware of the recording.

proper venue

Thanks JETX for that reply. I also wrote the judge of my intent to countersue for the damage to the cat converter. I suppose I have to file that counterclain with the clerk as well?

banjoman5 said:

Thanks JETX for that reply. I also wrote the judge of my intent to countersue for the damage to the cat converter. I suppose I have to file that counterclain with the clerk as well?

Click to expand...

Yep. Pay the fee and make sure that you serve the cross-complaint on the plaintiff.

proper venue???

"serve the cross-complaint on the plaintiff"

Can that be by registered mail? If I go to the clerk tommorrow , that`s less than a weeks notice. I don`t actually have to find someone to serve this person do I,...what if he isn`t home? He`s also has a night job with odd hours?
Please tell me I could just have it mailed to him?

Contact the court. They are best able to advise you on the processes and options, if any.

proper venue???

Thanks again very much JETX,...for all this help. I should have prepared earlier, but wasn`t aware of all the "legal processes" involved. I figuered a week was enough time to spen reliving this awful situation all over again.

This forum is great!

I most likely will post back again with more questions. Thanks!

proper venue???

Yah,...I`m back again!....Found out the clerk (Judges wife) isn`t even there till the time of the hearing. Guess I will have to file "improper venue" then. As to countersuit for damaged converter, ...decided to drop it for this $100 item, as it wouldn`t be heard for thirty days, and I`d have to return to that out of county court to do it!

On close examination of the pamphlet given to me by aattorney generals office on small claim proceedure, it say must sue in "area" where defendant lives. Does this strictly mean "county" in the NY system??? It seems a vague issue, I can`t find more on the internet,...do you think I really have a case? It`s unfortunate I won`t know till right before the trial.

I suggest you read and understand the venue issues noted at the following NY statutes:
http://assembly.state.ny.us/leg/?cl=16&a=6

I also strongly suggest you get and read a book similar to the following:
Winning in the New York Small Claims Courts: A Simple, Step-by-Step Guide for Everyone
Author: Richard A. Solomon
ISBN: 0971796505

proper venue

Sure looks like they`re talking "county" to me!
I don`t suppose as in the case of being sued in the wrong state, where they can`t enforce the judgement, and come after your bank account, the same holds for a judgement rendered acroos a county line???

Sorry for all the questions,...but I think I`m finally running out of them!

banjoman5 said:

I don`t suppose as in the case of being sued in the wrong state, where they can`t enforce the judgement

Click to expand...

*** Who said that they can't enforce that out-of-state judgment??? They can. The creditor would have to domesticate the original (foreign) judgment into the new state, but it can be done and then enforced there.

and come after your bank account, the same holds for a judgement rendered acroos a county line???

Click to expand...

*** Nope. It falls on the defendant to raise the challenge of 'wrong county' jurisdiction. If the defendant doesn't, then the judgment will be valid anywhere in the state.

proper venue???

All right,...down to the wire now. Seems I can be sued in the plaintiffs county if the work was contracted there. Fact was, the whole shebang was a verbal agreement over the phone, until the second time I went to get my car. It overheated the first time, and I gave the mechanic a week to try and fix it. The second time he asked me to sign a "work order" which was pre-dated. As I wanted my car back, I signed it. I suppose that piece of paper was the "contract"? Do you suppose his wanting me to sign it at our second meeting signified his foreknowledge of these judicial events to come? (ie...he knew the car still had overheating issues?),...he was acting kinda nervous the second time around.
Should I even bother to file for dismissal due to improper venue?

proper venue???

Well,...it`s over,..for now! The judge threw it out of court due to "wrong venue" ...suing in the wrong county!....I just wish he made a simple phone call to save me the trip!

Thanks again for the help JETX!

banjoman5 said:

Thanks again for the help JETX!

Click to expand...

*** Of course, you're welcome.
Now time to reload and file your complaint against him!!

improper venue???

I hear ya JETX! I just wrote an email to the EPA about this man "reaming out" my catalytic converter! I want to get this violation on record before he decides to try and sue me again in my own county. ...and then maybe I`ll have a stronger case in my countersuit.

PS,...I`m assuming it is best to countersue him for reimbursement of the cost of the catalytic converter, rather than sue him directly for it? It is a $100 item, and if I sue him, it would have to be where HE lives, wheras if I countersue, it would be in my home territory,..no? (for $100 bucks, it ain`t worth having to travel up north of the border again!)