Sued twice?

[zante05]

What is the name of your state? New York
I was sued last month and had to go to the NY small claims court. The person that sued me did not bother even to show up. The case was dismissed by the judge for non appearance and thought that that was it. About a week ago I received another notification to go to court again for the same thing by the same person. Can this be done? If yes can I counter sue and what will be the basis of my counter suit ?

Thanks

Eric

 

[justalayman]

if the judge dismissed without prejudice, the plaintiff can refile. If the judge dismissed with prejudice, they could not refile.

generally filing a second time would not be cause for action. Unless you can prove the plaintiff is doing this merely to harass you, you have no action available.

 

[BL]

WHAT HAPPENS IF ONE PARTY DOES NOT APPEAR?

If the claimant does not appear in court when the calendar is called, the case will be dismissed.

If the defendant does not appear, the court will direct an "inquest" (hearing). That means that the claimant will go before the judge or arbitrator to present evidence to prove his or her case without the defendant presenting any evidence. If the claimant's case is proved, a "default" judgment will be awarded against the defendant.

If a default judgment is granted because the defendant did not appear, or the case is dismissed because the claimant did not appear, the losing party may ask the court to re-open the case and restore it for a trial upon a showing of good cause. Contact the clerk for the procedure used to re open the case. The clerk also will set a date when both sides are to return to court or will advise when the judge will issue a decision.

If, on the return date, the judge decides to re-open the case, both sides should be prepared for trial in the event the case is re-opened.

 

[justalayman]

WHAT HAPPENS IF ONE PARTY DOES NOT APPEAR?


If a default judgment is granted because the defendant did not appear, or the case is dismissed because the claimant did not appear, the losing party may ask the court to re-open the case and restore it for a trial upon a showing of good cause..

That doesn;t make sense. If the case is dismissed, there is no "losing party". The case is not adjudicated.

Claimant Does Not Appear

If the clerk calls your case on the calendar and the claimant does not answer and appear, the claim will be dismissed without prejudice and you may go home. However, the claimant may start a case against you for the same claim in the future.


from: http://www.courts.state.ny.us/courts/nyc/smallclaims/appearing.shtml#claimant

but was linked via http://www.courts.state.ny.us/home.htm

Although the quote was from a NYC specific site, generally a states rules for small claims procedures are consistent throughout the state.

 

[BL]

That doesn;t make sense. If the case is dismissed, there is no "losing party". The case is not adjudicated.

Tell that to these folks :

http://www.courts.state.ny.us/ithaca/city/webpageguidetosmallclaims.html

It makes perfectly good sense , if you read it correctly .

If the claimant doesn't show up , case dismissed against the defendant .

In this case in order for the claimant to reopen the case , H/She/they have to show good cause why they didn't show up .

So be prepared to go ahead if the Judge , arbitrator , decides the case to go forward .

 

[dcatz]

You're both right (pretty much) and are splitting semantic hairs over someone else's poorly constructed sentence.
If there was a default judgment, there has been a losing party. If the case was dismissed without a hearing, there has been no adjudication of rights and no winner or loser. It would be more clear and correct if "losing party" were replaced by "non-prevailing party".
The whole thing is poorly written. It goes on to say "The party appealing the judgment can temporarily prevent its enforcement pending the decision on the appeal." Why would a prevailing claimant appeal and stay enforcement? The sentence applies to a defendant who appeared and lost on the merits. If the defendant failed to appear and suffered a default judgment, the remedy is a Motion to Vacate.
As to the OP's question, the missing claimant can try to have the case re-opened and a hearing conducted but on a showing of "good cause" (for the previous non-appearance). Try to ensure that the Court inquires about why that happened - "I forgot", "I over-slept" or "I had an important conflicting appointment" is not good cause. And no, there is no basis for damages by way of a counter-claim, if the claimant tries a second time, so be prepared to have your case heard, but also let the Court know that you appeared originally and were prepared to proceed, so the claimant's reason better be good.

 

[justalayman]

yes, it is an arguement wouldn't be won or lost here. I have no experience with NY courts and could not attest to what a judge would require for justification of a no-show.

I would expect to go back to court if I were the OP and no, OP, you have no action available to you because it was refiled.

 

[BL]

yes, it is an arguement wouldn't be won or lost here. I have no experience with NY courts and could not attest to what a judge would require for justification of a no-show.

I would expect to go back to court if I were the OP and no, OP, you have no action available to you because it was refiled.

If you're hospitalized or some sort , can't physically show , get the meaning ? And prove it .

Yes there are with or without prejudice rulings , but ( in this case ) there was a " no show " .

I am familiar with the small claims process , won some lost some , but woulda won m all accept " for the slip a the tong "