If you have been served with a Summons & Complaint for a civil lawsuit New York, you must “appear” in the action as soon as possible.
What does it mean to “appear”? Well, it simply means actively participate in the lawsuit by filing an Answer, Motion to Dismiss, or some other appropriate responsive pleading. To “appear” doesn’t necessarily mean that you must physically go down to the courthouse to speak with someone – at least not until directed otherwise by the Court. Filing an Answer is the most common method of responding to a Summons & Complaint, so let’s discuss what this entails.
Please note that regardless of whether or not the Summons has an “index number” assigned to it by the Court yet, you must technically file an Answer. Thus, if you need assistance figuring out how to accomplish this, you should contact the Court Clerk for guidance to ensure that you do not miss the deadline.
How much time do I have to file an Answer?
Depending on how you were served the Summons & Complaint, you will have either twenty (20) or thirty (30) days to file your Answer.
The clock begins to tick the day following the date you were served. This means that you do not include the date you were served in the calculation (i.e. if you were personally served with the papers on the 1st of the month and your Summons said you had 20 days to respond, you would have until the 21st to file your Answer).
Furthermore, and probably the most confusing concept for Defendants to grasp, is that there is not a date for service listed anywhere on the papers being served. You will see a number of dates on the papers you receive, but none of them will state the date you were served. You have to remember the date you received the papers on your own. The process server will being documenting that date and time for the service and he will file papers with the Court to inform them of that information.
Here are the applicable deadlines depending on method of service according to New York’s Civil Practice Law & Rules (“CPLR”) §320:
- You have twenty (20) days to file an Answer if the Summons was delivered to you by “personal” (i.e. in your hands) delivery.
- You have thirty (30) days to file an Answer if the Summons was delivered to you by any other method (i.e. left with someone of suitable age and mind in your household, by certified mail, or by publication).
Note: City and Small Claims Court cases may only allot you ten (10) days to file your Answer depending on how you were served. To determine how much time you have to “appear” simply review the language at the bottom of the Summons, which should list and further explain your deadlines.
What if I received a Summons, but not a Complaint?
Sometimes, a Summons is not accompanied by a Complaint, but rather a notice to appear. In this case, you can respond by filing a notice of appearance, which is often accompanied by a demand for a complaint. The opposing party then has 20 days to produce a complaint, and if they fail to a motion to dismiss can be made.
What if the last day to file is on a weekend day or Public Holiday?
If the last day to file is a Saturday, Sunday, or a public holiday, filing may be made on the next succeeding business day (General Construction Law § 25-a; 22 NYCRR 670.2[b]).
What happens if I don’t respond to the lawsuit in time (or even at all)?
If you fail to respond to the lawsuit in writing, you will be considered to be in default and this will allow the Plaintiff to try and obtain a judgment against you for the relief they’ve requested (all without affording you the opportunity to investigate and defend the lawsuit). If a default judgment has been entered against you, it is presumed to be valid and enforceable unless and until it has been vacated by order of the Court. Vacating a default judgment is difficult, can be costly and can only be done in limited circumstances. Furthermore, it doesn’t mean that the lawsuit can’t still proceed and eventually lead to the entry of another judgment.
What should my answer say and/or do?
Your answer needs to address all of the allegations made in the Complaint (paragraph by numbered paragraph). For example, if the Plaintiff’s Complaint, paragraph #4, states that you failed to pay the debt in question, but you feel you did, you would “deny” the allegation and perhaps provide some more details as to when and how you did pay off the debt. If you admit something in the Complaint that is factually accurate, you should simply “admit” to that fact. If you don’t know enough about the allegation, you should explain that as well.
Your Answer will also need to raise all the valid Affirmative Defenses that you feel may come into play in the lawsuit (i.e. Statute of Frauds, Statute of Limitations, failure to state a claim, etc.). Again, if you are able to provide more facts to back up these defenses, it will strengthen your defense.
You should eventually send your Answer to the Court for filing, as well as mail a copy of your Answer to the Plaintiff’s Attorneys, to ensure that they do not attempt to obtain a default judgment against you.
If you have any questions about this process or would simply like to have an attorney represent you with the legal proceedings, please don’t hesitate to call our office for a free consultation.