What is the name of your state (only U.S. law)? New york state
I have a case in small claims court in New York City involving malpractice. My question is procedural.
I want to move my case from Small Claims to regular Civil Court, could this be a problem?
Here are the details :
My court date was scheduled for Tuesday of this week and we have decided to withdraw the case from Small Claims Court and go to Civil Court.
I have no Lawyer the other side does.
I postponed the case once in our second appearance because our expert witness couldn't be there. The other side wanted to see a judge in our first appearance not an arbitrator. We were willing to go the arbitrator that first night so in some way I guess they postponed once also because we had to come back. (In New York City Small Claims they want to push you into the arbitration route because there are just to many cases for the judges to see, so if you want a judge which defendant in my case did, they schedule you a future date ). Luckily we didn't get to argue the case that first night because as we found out later we would have lost without an expert witness even in small claims. We thought the records would speak for themselves in that venue. We were wrong.
I went down to the clerks office yesterday to get some info and I noticed that the Judge marked our trial card final, which means that we weren't going to be allowed to get any other postponements in small claims. This is a little odd considering we only postponed the case once.
Regardless of the above circumstances, I spoke to the lawyer for the other side a few days ago, We were going to ask for another postponement because of a job I have out of town "I'm a cameraman and have to travel a lot for work", also we are just not ready to go to trial yet for a variety of reasons.
We were a little surprised when they so cooperatively agreed to our postponement without blinking. I know this is typical of what lawyers do for each other in bigger cases but I doubted they would do this for us without something behind it . They were just a little too nice considering their client has been a literal a-hole in every interaction we have had with him to this point.
Maybe I'm being paranoid but at the clerks office yesterday they told me that if a case is marked final, even if both side agree and we have something signed off on in writing the judge could disallow our postponement or the other side could change their minds in front of the judge on night of the trial and we would loose or default because we would not be prepared to argue the case thinking we had agreed to a postponement.
So even if the other side agrees to a postponement in writing before hand the Judge might not give it to us?
After thinking about the above.... yesterday we decided to forget the postponement and just withdraw and move to regular Civil Court. It's not worth all this messing around in small claims. There is no procedural flexibility there for a case like this. In terms of the now abandoned postponement idea we never exchanged any formal faxed or notarized document's with the other side, that was supposed to happen Friday but we never got to it because we decided it would be better to withdraw and just go to civil court and there lawyer was con in his office. We haven't told the other side of our new plans yet but will inform them before the Tuesday trial date. If that is what we are supposed to do
The question I don't know the answer to, The big question that is making me nervous :
Could that "marking" of my case final by the Judge on the trial card in some way hinder or prevent me from moving the case from Small Claims to Civil Court. Can the other side pull some fast one on me procedurally.
After submitting the withdrawal papers and informing them of my intention to move to regular Civil Court can they show up on Tuesday night and compel the Judge to vacate my case "with Prejudice"because I'm not prepared to argue it. I think that is what I read they call it "with Prejudice",when you can't get another shot at a case and it is a final decision.
Apparently to move to Civil court from small claims the case has to be "withdrawn without prejudice" whatever that means.
I just want to make sure I am handling this correctly and I'm not going to get blind sided by a tricky lawyer and a judge who that lawyer will try to convince that we are using the court as a nuisance to harass the defendant, which we are not. It is very hard to get all your ducks lined up... "evidence expert witnesses without a lawyer and as we have discovered" small claims court is way to inarticulate a place to argue this kind of a case in. We know that now. I feel completely procedurally hamstrung in small claims I thought it would be easier there, but not for this kind of a case. I suspect in NYC the "Small Claims Court's part" for bureaucratic purposes just want 's to move you along. Knowing this we want to go to regular Civil court with a lawyer. Initially we thought we could keep this simple and the other side would settle with us but that's obviously not going to happen
Again the question is.... Can the defendant's lawyer or the judge prevent me from moving my case to "Civil Court". And if he or they can prevent me from withdrawing and re-filing in Civil Court, is there anything I can do about it after the fact.
I also need to to know if I withdraw the case on Monday or Tuesday at the clerks office in the afternoon, if I should show up on Tuesday night for the hearing . Maybe it is better not show up to in this situation. The clerk told me it wasn't necessary to be there once the proper document has been notarized and submitted. My instinct is to show up at court that night just to be sure there is nothing procedurally that I am missing but I certainly don't want to be made into an idiot or questioned by the judge in some legal way that could box me into something I don't understand, the way they did when the marked my case final in the first place. If I had, had a lawyer I'm sure he would never have agreed to have the case marked final with only one postponement but I was not experienced enough to understand the implication of this
I'm now quite nervous that they can prevent me from moving to Civil Court.
This is, probably no big deal and I'm over thinking it. Hopefully I just need to withdraw the case and re start it in Civil Court. I just want to be sure I am handling this appropriately and doing my due diligence. I need to know weather or not I might be missing something here as soon as possible and I need to know the correct procedure to follow because whatever things I might have to do to move this to Civil Court correctly have to be done on Monday or Tuesday. I also don't want to be impolite to the other side regardless of how impolite there client has been to me so I want to inform them of my intentions as soon as possible.
Thanks to anyone who might be able to respond to this. I would greatly appreciate any info a knowledgeable person could impart about any of the above
spenceWhat is the name of your state (only U.S. law)?