STEPHEN C. GIAMETTA

& Associates, P.C.

Civil Litigation, Elder Law, Immigration,   Collections, Appeals and Criminal Defense

PHONE: 631-743-0LAW (0529)

516.446.0LAW (0529)

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Civil Litigation

With more than 15 years of experience representing individuals and businesses in a variety of situations we are able to defend or prosecute nearly any civil litigation claim.  While some of the more common types are listed below, we urge you to contact us regardless of your situation.  Moreover, we have developed relationships in almost every area of the law and, as such, if we are unable to assist you we will do our best to put you in touch with an attorney who can.  We simply want to be certain that you are properly represented, whether by our firm or another.

New Your State Court (Suffolk, Nassau, Bronx, Queens , Brooklyn or New York County).  U. S. District Court (Southern or Eastern District)

  • Breach of Contract

  • Personal Injury

  • Discrimination Claims

  • Breach of Fiduciary Duty

  • Civil Rights Claims

  • Section 1983 Claims

  • Business Disputes

  • Slip and Falls

Anatomy of a Civil Litigation
 

*The information found on this website is not legal advice, and should not be considered as such or be relied upon in any way.

Anatomy of a Civil Litigation Claim

A Civil Litigation Claim is typically an allegation that Party 1 has been wronged by Party 2 and Party 1 is therefore seeking some type of restitution, remedy or damages from Party 2.  We say "typically" because Civil Litigation encompasses such a wide area of the law that we are only able to provide a general sense of the most common types of situations.  Please feel free to call us to discuss your particular situation during a free consultation.

The Parties

The Plaintiff is the party that is bringing the claim (that feels they have been wronged).  The Plaintiff can be one or multiple parties.  The Defendant is the party against whom the claim is alleged (who has purportedly committed the wrong).  The Defendant can also be one or multiple parties. 

Jurisdiction

Jurisdiction refers to the Court's ability to hear (rule upon) the action, and it is be broken into two types: subject matter jurisdiction and personal jurisdiction.  Both must exist before a case can be allowed to move forward.  You may already be aware of the fact that the type of remedy being sought in a civil litigation matter will determine the court in which it is filed.  This is where subject matter jurisdiction comes into play.  The court must make sure that it is permitted to hear the claim based upon the relief being sought and, if monetary relief is being sought, the amount in question.  As an example, the district court of Suffolk County can only hear claims up to $15,000.00, so that court would not have subject matter jurisdiction for claims seeking more than this amount. 

Provided the court is indeed able to hear the case (i.e. it has subject matter jurisdiction) it will shift its focus to personal jurisdiction.  Personal jurisdiction essentially means that the Defendant has been properly notified of the lawsuit, thus having an opportunity to defend it.  This makes sense of course because we cannot have a system where a Defendant is not made aware of a lawsuit against him and, thus, not have an opportunity to respond and defend against same.  Personal jurisdiction is only achieved if the papers starting the lawsuit are provided upon the opposing party in compliance with the CPLR (Civil Practice Laws and Rules) of New York State.  For most matters it is section 308 of the CPLR that is controlling (more on this below).  Personal jurisdiction is typically achieved by serving the documents upon the Defendant through the use of a process server.  While some venues in New York State require process servers to be licensed, in other areas anyone over the age of 18 and not a party to the action (not listed as a Plaintiff or Defendant) can serve the papers.  While the court is always going to be aware of whether or not it has subject matter jurisdiction just by looking at the relief being sought, the same cannot be said of personal jurisdiction because the court does not take part in the serving of papers.  As such, the Plaintiff must make the court aware of the fact that the papers have been properly served, which is done by the filing of an Affidavit of Service.  The Affidavit of Service states how, when, where and upon whom the papers were served, and if the how, when, where and upon whom comply with New York's CPLR the Court now has personal jurisdiction.  *An interesting note in this regard is the fact that even if papers are delivered to the Defendant and he admits receiving them, if they were not delivered in a manner permitted under the CPLR service is still deemed improper.

Pleadings

The pleadings are akin to the opening remarks of both parties.  For the Plaintiff, the pleading consists of a Summons and Complaint.  The Summons is what provides the Defendant notice of the fact that an action has been initiated against him.  It does not contain any allegations about the complained of occurrence, but simply states the names of the parties, where the case is being heard and the time for the Defendant(s) to respond.  A Summons is normally served with a Complaint, though not always, and it is the Complaint that contains the specifics of the parties involved, what took place, and what type of relief is being sought (what the Plaintiff wants the Court to order the Defendant to do or provide).  

Once the Defendant has been served with the Complaint he must respond to the allegations therein by serving an Answer within the time set forth in the CPLR.  If the process sever gives the papers directly to the Defendant this is called personal service, and the CPLR permits Defendant 20 days to serve an Answer (CPLR 308(1)).  If the process server gives the papers to someone he encounters at Defendant's residence (by this method the process sever must also mail the papers to the Defendant) this is called substituted service, and the CPLR permits Defendant 30 days to Answer (CPLR 308(2)).  Should the process server make proper attempts at delivery to the Defendant or to someone he finds at Defendant's residence but still be unable to deliver by either method, CPLR 308(4) permits him to literally tape the papers to Defendant's door and mail a copy thereafter.  This is often referred to as "nail and mail" service.  The Defendant has 30 days to Answer a Complaint served via the nail and mail method.  It should also be noted that the time to Answer does not begin to run until service is complete though.  When papers are directly served upon the Defendant service is complete at the time of service.  For papers served pursuant to CPLR 308(2) or (4) service is deemed complete, and thus the time to Answer begins to run, ten (10) days after the Affidavit of Service is filed with the Court.

Once the Defendant has been served with the Complaint he can do one of several things.  (1) Ignore the Complaint.  This will lead to Defendant being in default.  Should a default occur the Court can enter a judgment in Plaintiff's favor for what is being sought in the Complaint, provided the Plaintiff can prove he is entitled to such to the satisfaction of the Court.  (2) Answer the Complaint.  The Defendant's Answer is served upon the Plaintiff and filed with the Court (although the CPLR only requires that it be served upon the Defendant it is customary for the Answer to be filed with the Court as well).  If the Answer is timely it will avoid the possibility of a default and allows the case to move forward.  (3) Answer with a counterclaim or cross-claim.  This is served exactly like an Answer, and the portion of it responding to the Complaint is the same as the regular Answer.  While the Complaint contains allegations by the Plaintiff against the Defendant, however, a counterclaim or cross-claim contains allegations by the Defendant against the Plaintiff or another Defendant in the same action.  It is interesting to note that the allegations in a counterclaim do not have to relate to the allegations in the Complaint itself, but can introduce an entirely unrelated scenario to the lawsuit.

Once the Answer (or Answer with counterclaim/cross-claim) is served it is deemed that "issue has been joined" for that particular lawsuit  This simply means that the allegations of both parties are now before the court and, as a result, the case can now move forward.

After Issue has been Joined (the Complaint has been answered)

It is difficult to provide one specific thing that occurs after issue has been joined because much of it depends upon the court in which the case is being heard.  In certain venues and scenarios the court will set the matter down for a conference so that the parties can discuss the matter and hopefully reach a settlement.  There are other venues and situations in which the court will not do a thing until the parties take certain action, such as seek a conference, file a motion or file a Note of Issue, which will act to set the matter down for trial.

 

Discovery

Outside of any action taken by the court, the typical case will proceed to discovery after issue has been joined.  This normally takes the form of written demands, which must be responded to as per the CPLR.  Two important notes on written discovery.  First, when responding to certain written discovery the proper form is to type the question first, and then provide your answer to that question beneath it.  In addition, while you can object to discovery demands if they fall within one of the objectionable categories, those objections must be timely or the objection is deemed waived (although case law does hold that certain objections are not waivable it is not a good idea to rely upon this case law, and the better form is to simply serve a timely response to discovery demands).  Once written discovery is complete the parties will likely proceed to depositions, which are also known as examinations before trial (EBTs).  In fact, as most attorneys will use the responses received in written discovery while conducting the deposition, it is highly unusual for depositions to take place prior to the completion of written discovery.

Motion practice

At any time during the course of a case either party may file a motion seeking various relief, although it should be noted that there are Judges who first require a party to obtain his or her permission or at least attend a conference before filing a motion, and some motions (i.e. Summary Judgment) can normally only be filed after issue has been joined.  Motions are extremely varied, but in general a motion is filed by one side to the lawsuit to compel the other side to take certain action (i.e. respond to discovery, appear for a deposition), to seek permission from the court to take certain action (i.e. amend the complaint) or to have the Court issue a final ruling on the case without the need for a trial (i.e. motion to dismiss, motion for summary judgment).  A few items of note in this regard.  The court typically expects the parties to resolve discovery motions on their own, but if the failure to comply becomes so egregious the Court can and often will strike the Answer of the Defendant (allowing Plaintiff to obtain a default) or dismissed the Plaintiff's action.  As such, discovery motions should not be taken lightly.  In addition, you might be interested to know the difference between a motion to dismiss and a motion for summary judgment as these are some of the more common dispositive motions.  First and foremost, a motion to dismiss is typically only filed by the Defendant (it can be filed by a Plaintiff if a counterclaim has been alleged), as it is seeking to dismiss the Plaintiff's complaint (or Defendant's counterclaim).  Support for the granting of this motion can be had in a number of ways, all of which are listed in CPLR 3211, but one of the more common reasons for filing such a motion is that the Plaintiff has failed to set forth a cause of action.  A good example of this is a claim for harassment.  Though not commonly known, New York case law is clear that no private cause of action exists for harassment.  Using this case law in support of his motion Stephen C. Giametta has obtained the dismissal of several claims of harassment against entities he has represented.  Finally, in deciding a motion to dismiss the court cannot look at testimony or anything of that nature, but can instead only look at the four corners of the Complaint.  In doing so the Court must also take everything in the Complaint as true.  As such, there are only specific instances in which a motion to dismiss is applicable.  In contrast to a motion to dismiss, a motion seeking summary judgment can be filed by either side to the lawsuit.  Moreover, a motion for summary judgment is based purely on the law, not the facts of the case.  In fact, if there is any issue of material fact that is in dispute the Court cannot grant the motion for summary judgment.  Instead, such an issue must proceed to trial where the trier of fact must decide upon it.

Trial

Once discovery is complete and all motion practice has taken place the lawsuit will be set down for trial.  Of course, the court may still bring the parties in to discuss a resolution, and likely will do just that.  If they are unable, however, a trial will indeed occur.  Each side is permitted opening statements, after which Plaintiff will present its case with witness testimony.  Defendant will then have an opportunity to present a defense, and after the defense rests the parties each present closing statements.

Please know that I have severely simplified all of the above, as it is presented to provide nothing more than a general overview of a typical Civil Litigation.  There are a multitude of issues and situations that may arise during the course of any litigation, however, that if not handled properly may lead to a ruling in favor of your adversary.  Moreover, the case law in New York is clear that an individual proceeding Pro Se (without an attorney) is afforded no greater leeway than an licensed attorney, and is therefore expected to be aware of the relevant law and procedures of the court.  As such, though it is your prerogative, we do not recommend that anyone enter into a Civil Litigation matter without the assistance of an experienced attorney. 

 
 
 
 
 
 
 

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