can I also sue for “pain and suffering” in SCC?

[Fritz]

Can I also sue for “pain and suffering” in Small Claims Court in NYS, in addition to the actual damages?

 

[racer72]

Probably not. Small claims courts allow for suing for actual damages only. You will have to sue in a higher court for pain and suffering.

 

[I AM ALWAYS LIABLE]

Can I also sue for “pain and suffering” in Small Claims Court in NYS, in addition to the actual damages?

My response:

After researching your issue, I could not locate any restrictions to General Damages (pain & suffering) in New York Small Claims court. In fact, New York law does not make any differentiation in asking for particular types of damages in any court, whether Small Claims or Supreme Court.

The following law makes no differentiation between courts, and allows for General Damages:

New York Consolidated laws:

Section 4213. Decision of the court. (a) Requests for findings. Before the
case is finally submitted, the court shall afford the parties an
opportunity to submit requests for findings of fact. Each request shall be
numbered and so phrased that the court may conveniently pass upon it.
(b) Form of decision. The decision of the court may be oral or in writing
and shall state the facts it deems essential. In a medical, dental or
podiatric malpractice action or in an action against a public employer or a
public employee who is subject to indemnification by a public employer with
respect to such action or both, as such terms are defined in subdivision
(b) of section forty-five hundred forty-five, for personal injury or
wrongful death arising out of an injury sustained by a public employee
while acting within the scope of his public employment or duties, and in
any other action brought to recover damages for personal injury, injury to
property, or wrongful death, a decision awarding damages shall specify the
applicable elements of special and general damages upon which the award is
based and the amount assigned to each element, including but not limited to
medical expenses, dental expenses, podiatric expenses, loss of earnings,
impairment of earning ability, and pain and suffering. In a medical, dental
or podiatric malpractice action, and in any other action brought to recover
damages for personal injury, injury to property, or wrongful death, each
element shall be further itemized into amounts intended to compensate for
damages which have been incurred prior to the decision and amounts intended
to compensate for damages to be incurred in the future. In itemizing
amounts intended to compensate for future damages, the court shall set
forth the period of years over which such amounts are intended to provide
compensation. In computing said damages, the court shall award the full
amount of future damages, as calculated, without reduction to present
value.
(c) Time for decision. The decision of the court shall be rendered
within sixty days after the cause or matter is finally submitted or within
sixty days after a motion under rule 4403, whichever is later, unless the
parties agree to extend the time.

Good luck to you.

IAAL

 

[JETX]

One thing to be aware of in New York Small Claims; some of the jurisdictions use Small Claims Arbitrators in addition to Judges and you must elect which one you want to use.

Judges can award "pain and suffering", Arbitrators CANNOT. So, if you are including 'pain and suffering' in your claim, be sure to elect a judge to here your case.

Here is a text excerpt from the NY State Bar Association:
"In jurisdictions that use small claims arbitrators, (85) litigants must elect between trial by a judge or by an arbi trator. Arbitrators are "capable, diligent and dedicated volunteer members of the New York State Bar, who with little or no recognition, give of their time." (86)

Arbitrators are not judges, (87) but they are "experienced, qualified and carefully selected attorneys." (88) When arbitrating, they are required to comply with the Code of Judicial Conduct (89) and the Rules Governing Judicial Conduct. (90) They must thus obey rules of decorum, recuse or disqualify themselves if appropriate and avoid ex parte conversations. Under Public Officers Law section 17, arbitrators are "protected by the same immunities afforded to a judge." (91)

Trials before arbitrators, who wear no robes and ought have no pretenses, typically are less stressful than trials before judges. Arbitrators often have more time to devote to their cases than judges do. Trials before arbitrators are not mechanically or stenographically recorded, whereas trials before judges are.

In most jurisdictions that use arbitrators, nearly 90 percent of litigants choose arbitrators. (92)

Judges may award punitive damages, (93) but arbitrators may not. (94) Both may award nominal damages (95) and damages for "pain and suffering"; (96) both have "the responsibility of ensuring that the necessary facts are revealed"; (97) both consider the same types of cases; and--as the New York State court system promises litigants--"both apply the same law." (98)
Source (with notes):
http://www.nysba.org/media/barjournal/lebovits.html


[Edited by Halket on 07-21-2001 at 05:11 PM]

 

[I AM ALWAYS LIABLE]

Judges can award "pain and suffering", Arbitrators CANNOT.

Judges may award punitive damages, (93) but arbitrators may not. (94) Both may award nominal damages (95) and damages for "pain and suffering" . . .

My response:

Steve, thank you for bringing to our attention that which I was looking for, but could not locate.

However, you are misinterpreting the above policy. As you will note, our original writer was discussing General Damages (pain & suffering) and his ability to claim them in Small Claims court. Contrary to what you have said concerning Arbitrators, the above policy provision clearly states that Arbitrators can award "pain and suffering" (General Damages).

Therefore, it makes no difference if our writer is assigned to a Judge or an Arbitrator - - at least in terms of the types of damages he is seeking.

Just thought I'd clear that up.

IAAL

 

[JETX]

IAAL: Of course you are correct. I suffered a minor "Brain Fart" while reading the text and completely transposed the intent. Mea Culpa, I need another Margarita!!!

 

[I AM ALWAYS LIABLE]

I need another Margarita!!!

My response:

I'm with you. A double sounds good right about now.

(Clink, clink) Cheers !

IAAL

 

[Fritz]

thanks for the info

I’ll raise you double and ask that it be Patron Silver and Cointreau please.
Some say the Patron makes no difference. They must be drunk!