If you have been served with a summons and complaint in New York City, you must respond in a timely manner to prevent a default judgment. This article provides you with the knowledge to do so.
This article is designed for those who want to represent themselves (pro se). We urge you to contact us for help with your consumer debt lawsuit.
First, what is a Summons and Complaint?
Two primary documents you might receive in a civil case are the "Summons" and the "Complaint." Let's delve deeper into understanding these key documents:
1. Summons:
- Definition: A summons is a formal document issued by the court directing the person named (usually the defendant) to respond to a civil case that has been filed against them. It acts as a notification that a legal action has been initiated and includes essential details about the case, such as the court in which the case has been filed and the timeframe within which the defendant must respond.
- Purpose: The primary objective of the summons is to provide official notice to the defendant that they are being sued. It also informs them of their obligation to respond to the lawsuit within a specified time. Failure to adhere to the time limit can result in default judgment, meaning the court could decide the case in the plaintiff's favor without hearing the defendant's side.
2. Complaint:
- Overview: The complaint is a more detailed document than the summons. It sets forth the plaintiff's reasons for bringing the lawsuit and lists the allegations against the defendant. In essence, it provides the defendant with specifics about why they're being sued.
- Allegations and Claims: Within the complaint, the plaintiff lays out their grievances. These are typically organized into numbered "counts" or "causes of action." Each count will describe a specific legal harm the plaintiff believes they have suffered due to the defendant's actions, accompanied by a request for relief (often in the form of monetary compensation). It is crucial for the defendant to understand these claims, as their response (or "answer") to the complaint will need to address each one directly.
How to Formally Respond to a Summons and Complaint
In New York City, you can respond in person or in writing. Here's a breakdown of both methods. If you need help, complete this intake form.
In-Person Response
Where to Go:
- Head to the courthouse indicated on the Summons. This is the specific court where the case against you has been filed. If you're unsure about the location, the address and court details will be provided on the Summons document.
What to Bring:
- The Original Summons and Complaint: It's imperative to have these original documents with you. They contain crucial details that the court clerk will refer to.
- Identification: Bring a valid ID, like a driver's license or passport, to confirm your identity.
- Any Relevant Documentation: If you have any documents or evidence that might be pertinent to your case or response, it's a good idea to have them on hand, even at this early stage.
Who to Speak To:
- Once at the courthouse, approach the court clerk's office. The court clerk will guide you on how to record your in-person response officially and might provide further information on the subsequent steps in the process.
Written Response
Using Court-Provided Forms vs. Creating Your Own:
- Court-Provided Forms: Many courts offer a standard Answer form that defendants can use to respond to a Summons and Complaint. These forms are structured to ensure you provide all the necessary information in a format that the court recognizes. If available, it might be the easiest option for those unfamiliar with the legal process.
- Creating Your Own: If you choose to draft your response, it must be coherent and organized. Make sure to address each allegation listed in the Complaint separately. While you have more flexibility with this option, it's essential to ensure you're meeting all the court's requirements for content and format.
Verifying Your Answer:
- Why Verification Matters: Verification affirms that everything you've stated in your written response is true to the best of your knowledge. It's a protective measure against frivolous or false statements.
- Signing in front of a Notary Public or Court Clerk: When you've completed your written response, you need to sign it to verify its contents. This signing must be done in the presence of a notary public or a court clerk. They will then affix their seal or stamp to the document, validating that you've verified the answer in their presence.
In both response methods, timeliness and accuracy are key. Always ensure you're adhering to any deadlines listed on the Summons, and when in doubt, consider seeking legal counsel to guide you through the process.
What is a General Denial, and Why is it Important In My Answer?
A general denial involves denying all the allegations in the complaint without specifying individual denials. It is crucial to include any defenses you have in your Answer because failing to do so may prevent you from raising them later in the case.
What is a Counterclaim, and Should I Include One in My Answer?
A counterclaim is a claim made by the defendant against the plaintiff who initiated the case. You can include a counterclaim if you have a valid claim against the other party related to their claims against you.
Sample Answer to Complaint for Pro Se Defendant (representing yourself)
CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
ABC Debt Purchasing, LLC, Index No.:
Plaintiff,
-against-
John Doe,
Defendant.
ANSWER
Defendant John Doe, appearing pro se, responds to the Complaint as follows:
As to the allegations in paragraph 1, Defendant is without knowledge and therefore denies them.
As to the allegations in paragraph 2, Defendant admits being a resident of New York County.
As to the allegations in paragraph 3, Defendant denies the allegations due to lack of information regarding the account.
As to the allegations in paragraph 4, Defendant denies owing any sum to Plaintiff.
AFFIRMATIVE DEFENSES
The Defendant asserts the following defenses:
A. Plaintiff’s Complaint fails to state a claim upon which relief can be granted.
B. The claim is barred by the statute of limitations.
C. Plaintiff lacks standing to sue.
D. Any alleged damages have been caused or contributed to by Plaintiff’s own actions or omissions.
Upon discovery of further information, the defendant reserves the right to amend or add additional answers, defenses, and counterclaims.
WHEREFORE, Defendant requests dismissal of the Complaint in its entirety with prejudice.
Dated: [Date]
[Your Signature] John or Jane Doe [Your Address] [Your City, State, Zip] [Your Phone Number]
What should I do if I receive a summons labeled "CONSUMER CREDIT TRANSACTION"?
If your summons is related to a consumer credit transaction, have an attorney analyze your case here.
What if I Don't Recognize the Plaintiff in my Case?
If you have no business relationship with the plaintiff, mention this in your Answer. The plaintiff must prove ownership of the debt and provide a letter from the creditor confirming the debt's validity.
Two Defenses In Consumer Debt Cases in NYC
1. Lack of Plaintiff's Debt Collection License:
- Check if the plaintiff, who is often a debt-buying company, has a required license from the New York City Department of Consumer Affairs to collect debts.
- If the plaintiff lacks the necessary license, it can be a valid defense in your case.
- Verify the plaintiff's licensing status online through the Department of Consumer Affairs.
2. Missing Debt Collector's License Number:
- Debt buyers typically need a license from the New York City Department of Consumer Affairs, and this license number should be included in the complaint.
- You can use this as a defense if the plaintiff fails to include the license number.
- The court may dismiss the case or allow the plaintiff to amend the complaint by adding the license number.
What Should I do if the Complaint has a Verification at the End of it?
If the complaint includes a Verification, it means the plaintiff has sworn that the complaint is true. In such cases, you should create a verified Answer by signing it in front of a notary public.
How Should I Serve My Answer on the Plaintiff?
- Check with the court for specific service instructions.
- An adult over 18 must mail a copy to the Plaintiff.
- If the Plaintiff has a lawyer, send a copy to their attorney. Remember to complete an Affidavit of Service by mail if required.
Determine the Deadline to Answer the Complaint
The summons will indicate the deadline by which you must respond.
The deadline can be 10, 20, or 30 days, depending on how you received the papers and whether the case is in a court inside or outside New York City.
- You have 20 days if the documents were handed to you directly.
- You have 30 days if the documents were delivered to you by any other method.
Various Methods of Permitted “Service” in New York City
- Personal Delivery (In-Person Service): As stated above, if the documents are handed to you directly, you have 20 days to respond.
- Substituted Service: This involves leaving the documents with someone of suitable age and discretion at your home or place of business and then mailing you a copy. After the documents are mailed, you have 30 days to respond.
- Service by Mail: This method involves mailing the documents to you with instructions to sign and return an acknowledgment of receipt. After receiving the documents by mail, you have 30 days to respond.
- Conspicuous Service (or "Nail and Mail"): If attempts at personal and substituted service are unsuccessful, the documents can be affixed to your door and then mailed to you. Once mailed, you have 30 days to respond.
- Publication: In rare circumstances, if you cannot be located after diligent efforts, the court may allow the documents to be published in a newspaper. After the last date of publication, you typically have 30 days to respond.
- Electronic Means: In some instances, with court permission, documents can be served via email or other electronic means. The response time may vary, but if it falls under "any other method," you would have 30 days.
What Does "Service" (of a Summons and Complaint) Mean Exactly?
"Service" in the context of a Summons and Complaint refers to the official and legal method used to formally deliver court documents to a defendant, notifying them of a legal action being taken against them. This action ensures that the defendant is aware of the lawsuit and has an opportunity to respond.
When Does the Clock Start Ticking After “Service”?
Under the New York Civil Practice Law and Rules (CPLR) 308, the timing for a defendant to respond (i.e., answer) starts from when the plaintiff files an affidavit of service with the court, not from the date of service itself. Here's a breakdown based on CPLR 308:
- Personal Service (CPLR 308(1)): If the summons is delivered personally, the defendant has 20 days from when the affidavit of service is filed to answer.
- Substituted Service (CPLR 308(2)): If service is made by leaving the summons at the defendant's dwelling or usual place of abode with a person of suitable age and discretion, and then mailed, the defendant has 20 days from the date the affidavit of service is filed to answer. However, there's also a provision that requires an additional 10 days if the plaintiff provides a notice of such service. So, in practical terms, it can be 30 days after the affidavit of service is filed.
- Service Upon a Suitable Person & Mail (CPLR 308(4)): This is similar to substituted service but is used if attempts at personal or substituted service are unsuccessful after due diligence. The documents can be affixed to the door (or left in a conspicuous place) and then mailed to the defendant. The defendant has 30 days from the filing of the affidavit of service to answer.
- Publication (CPLR 308(5)): Service by publication may be used if the defendant cannot be located after diligent efforts. The defendant typically has 30 days from the filing of the affidavit of service to answer, but this can vary based on court instructions.
Which New York State Statute Governs Answering Deadlines?
The NY statute that governs answer deadlines under CPLR § 3012.
Summary of Main Deadlines in NY CPLR § 3012
Complaint: The complaint must be served within 20 days of service of the summons or within 30 days if the summons and complaint were not personally delivered to the defendant within the state.
Answer: The answer must be served within 20 days of service of the complaint.
Short Examples
- Example 1: On October 15, 2023, Plaintiff served Defendant with a summons and complaint. Defendant has until November 4, 2023 to serve Plaintiff with an answer.
- Example 2: On October 15, 2023, Plaintiff serves Defendant with a summons with notice. Defendant serves Plaintiff with a written demand for the complaint on October 17, 2023. Plaintiff has until November 6, 2023, to serve Defendant with the complaint.
Additional Obligations
- A party may request an extension of time to appear or plead by filing a motion with the court. The court may grant the extension if the party shows a reasonable excuse for the delay.
- If a party fails to serve the required pleadings on time, the other party may file a motion to dismiss the case.
Late Answers in Legal Proceedings: Case Summaries
Mortgagor's Untimely Answer Denied: In a foreclosure proceeding, the mortgagor was not entitled to file a late answer as they failed to provide a reasonable excuse for the delay, and the potential merit of their defense was unnecessary to consider. (Bank of New York Mellon v. Adago, 2 Dept. 2017)
Lessee Lacks Meritorious Defense: A lessee's request to serve a late answer was denied in a dispute over lease rights, as they failed to demonstrate any payments made under the lease or for taxes and insurance, precluding the need for a late answer. (333 Cherry LLC v. Northern Resorts, Inc., 3 Dept. 2009)
Store Owners Granted Late Answer: The trial court had the discretion to accept an insurer's delay as a reasonable excuse for store owners' default in answering a complaint, permitting them to serve a late answer in a trip and fall action. (Harcztark v. Drive Variety, Inc., 2 Dept. 2005)
Delay in Mechanic's Lien Case: The court abused its discretion by allowing defendants to file an answer in a mechanic's lien foreclosure action after being in default for over two years. (Abra Const. Corp. v. Hazelton Realty Corp., 1 Dept. 1984)
Late Answer in Breach of Contract: In a breach of contract action, a contractor's answer to an amended verified complaint, filed nearly seven months after service was considered late. (Nassau County v. Cedric Const. Corp., 2 Dept. 1984)
Excused Delay in Negligence Case: Failure to apply for an extension of time before the expiration date did not prevent the court from excusing a three-day delay in filing an answer in a negligence action for personal injuries. (Sumner v. Reich, 2 Dept. 1983)
Excusing Delay in Personal Injury Case: In a personal injury case, the court properly excused a three-day delay in responding due to various factors, including the initial misdirection of the complaint and the absence of prejudice. (Helfer v. Dan's Supreme Supermarket, Inc., 2 Dept. 1983)
Discretion to Excuse Brief Delay: Courts have discretion to excuse brief delays in answering when the defendant serves the pleading and applies to the court before a default judgment is entered. (Junior v. City of New York, 2 Dept. 1981)
Mortgagor's Potentially Meritorious Defenses: In a bank's foreclosure action, the mortgagor's motion for leave to file a late answer was granted due to several potentially meritorious defenses, including issues regarding notice requirements. (Wells Fargo Bank, N.A. v. Chateau, 2012)
Consumer Debt Defense Answer Preparation Checklist
- Gather documents. (e.g., Collect all relevant statements, contracts and communication records.)
- Analyze each complaint allegation for response: deny, admit, or lack of knowledge. (e.g., Deny charges that are incorrect, admit to any that are true, and state lack of knowledge to those that you cannot confirm or deny.)
- Ensure no inadvertent admissions; unchallenged allegations are deemed admitted. (For instance, if an allegation is not explicitly denied, it is automatically accepted as true.)
- Address allegations requiring particularity in response. (e.g., If the complaint details a signed contract, you must specifically address the authenticity of the signature.)
- Identify and articulate any affirmative defenses; omission constitutes waiver. (Example: If claiming statute of limitations as a defense, it must be clearly stated, or it's waived.)
- Determine the presence of any counterclaims and required specificity. (e.g., If alleging fraud by the plaintiff, detail the fraudulent acts with precise claims as you would in an initial complaint.)
- Consider any cross-claims for indemnification or contribution and demand for an answer. (Example: If a co-defendant should cover part of the claim, specify this in a cross-claim.)
- Assess if nonparties should be joined on counterclaim or cross-claim. (e.g., If another party is partly responsible, they may need to be brought into the case.)
- Prepare the answer on standard white paper, properly formatted with all requisite information. (Ensure the answer follows the court’s formatting rules, e.g., typed, double-spaced on 8.5”x11” paper.)
- Certify the answer’s preparation in good faith. (e.g., Attorney certification that the answer is not interposed for delay.)
- Complete proof of service documentation. (Document that the answer was served on the plaintiff's attorney, indicating when and how it was delivered.)
Quiz: Understanding Summons and Complaint in NYC
Question 1
What is the primary purpose of a summons in a civil case?
A. To inform the defendant about the court's decision
B. To request the plaintiff to pay a fee
C. To notify the defendant that they are being sued and must respond
D. To provide the plaintiff with the defendant’s personal details
Answer: C
Question 2
Which document outlines the plaintiff's reasons for suing and the allegations against the defendant?
A. Summons
B. Answer
C. Complaint
D. Affidavit
Answer: C
Question 3
In NYC, if you are responding to a Summons and Complaint in writing, why is verification important?
A. It allows the court to process the response faster
B. It affirms that the statements in the response are true
C. It serves as an official acceptance of the lawsuit
D. It helps in identifying the correct defendant
Answer: B
Question 4
What is a general denial in the context of responding to a Complaint?
A. Accepting all allegations as true
B. Denying specific allegations individually
C. Denying all allegations without specifying individual denials
D. Agreeing to only part of the allegations
Answer: C
Question 5
Which is a valid reason to include a counterclaim in your answer?
A. To request an extension for responding
B. If you believe the court venue is improper
C. If you have a valid claim against the plaintiff related to their claims
D. To challenge the jurisdiction of the court
Answer: C
Question 6
What should you do if you do not recognize the plaintiff in your case?
A. Ignore the summons
B. Immediately pay the requested amount
C. Mention the lack of business relationship in your answer
D. Request a new plaintiff to be assigned
Answer: C
Question 7
The summons indicates the deadline by which you must respond. How many days do you have to respond if the documents were handed to you directly in New York City?
A. 10 days
B. 20 days
C. 30 days
D. 40 days
Answer: B
Question 8
Which method of service gives you 30 days to respond after the documents are mailed to you?
A. Personal Delivery
B. Substituted Service
C. Service by Mail
D. Publication
Answer: C
Question 9
Under what condition can service by publication be used in New York City?
A. When the defendant is a public figure
B. If the defendant cannot be located after diligent efforts
C. For all debt collection cases
D. When the defendant is out of the country
Answer: B
Question 10
What is the first step you should take if you receive a summons labeled "CONSUMER CREDIT TRANSACTION"?
A. File a complaint with the Department of Consumer Affairs
B. Have an attorney analyze your case
C. Pay the claimed amount immediately
D. Send a general denial response
Answer: B
Conclusion: This checklist guides consumers and attorneys through the tactical steps of formulating a response and provides insight into the strategic considerations necessary for a solid defense in consumer debt litigation.
More Cases:
Case 1: Judicial Admissions in Pleadings as Conclusive Evidence in Contract Dispute
A concrete supplier sued a construction contractor for breach of contract and its president on a personal guaranty. The court found in favor of the supplier against the contractor, relying in part on judicial admissions in the defendants' pleadings, but dismissed claims against the president personally.
Key Legal Principles:
- Judicial admissions in pleadings are conclusive of admitted facts in an action.
- A corporate officer who signs a contract as an agent for a disclosed principal is not personally liable unless there is clear evidence of intent to be personally bound.
- Contractual provisions allowing recovery of legal fees by the prevailing party must be strictly construed.
Conclusion: The main takeaway is that admissions made in pleadings constitute formal judicial admissions and are conclusive of the facts admitted in the action. This principle can be crucial in contract disputes, as it was in this case where the defendants' admission of entering into a contract in their answer and counterclaim was used to establish the existence of the agreement. Additionally, courts will strictly interpret clauses imposing personal liability or allowing recovery of legal fees.
Citation: GMS Batching, Inc. v TADCO Constr. Corp., 120 AD3d 549, 992 NYS2d 264 (2d Dept 2014).
Case 2: Judicial Admissions in Pleadings and Contractual Indemnification in Construction Injury Case
A property owner, facing a lawsuit from an injured worker, sought indemnification or contribution from the worker's employer. The court ruled in favor of the property owner on contractual indemnification based on judicial admissions in pleadings and the relationship between contracting parties. The court also found a factual issue regarding whether the worker suffered a "grave injury" for the purposes of a common-law contribution claim.
Key Legal Principles:
- Facts admitted in a party's pleadings constitute judicial admissions and are not subject to controversy.
- A parent company may be entitled to contractual indemnification based on an agreement signed by its wholly-owned subsidiary acting on its behalf.
- The question of whether an employee suffered a "grave injury" under Workers' Compensation Law § 11 can be a material fact issue precluding summary judgment.
Conclusion: The main takeaway is that courts will enforce contractual indemnification based on judicial admissions in pleadings and recognize the relationship between parent companies and subsidiaries in contract interpretation. Additionally, the "grave injury" standard in workers' compensation cases can create factual issues preventing summary judgment.
Citation: Falkowski v 81 & 3 of Watertown, Inc., 288 AD2d 890 (4th Dept 2001).
Case 3: Documentary Evidence Conclusively Refuting Plaintiff's Claims Warrants Dismissal in Condominium Dispute
A parking garage owner in a condominium sued the condominium board, challenging the allocation of common expenses after the first year of operation. The owner alleged that the method of allocating expenses breached contractual duties and resulted in overassessment. The court dismissed the complaint based on documentary evidence, specifically the condominium's offering plan, declaration, and bylaws, which contradicted the owner's claims about how expenses should be allocated.
Key Legal Principles:
- To succeed on a motion to dismiss based on documentary evidence, the evidence must utterly refute the plaintiff's factual allegations and conclusively establish a defense as a matter of law.
- Governing documents of a condominium can serve as conclusive documentary evidence in disputes over contractual obligations.
- A declaratory judgment cause of action is unnecessary and inappropriate when the plaintiff has an adequate alternative remedy, such as breach of contract.
Conclusion: The main takeaway is that clear and unambiguous documentary evidence, such as condominium governing documents, can be sufficient to dismiss a complaint at the pleading stage if it definitively contradicts the plaintiff's allegations. This case underscores the importance of carefully reviewing relevant documents before bringing a claim.
Case Citation: 189 Schermerhorn Owners Co., LLC v Bd. of Managers of Be@Schermerhorn Condominium, 186 AD3d 1467 (2d Dept 2020).