The judge can also protect your children in the order of protection.
For example, you may ask that any visitation with the children be
supervised. In Family Court, the judge can order the respondent to
pay temporary support and to give you legal custody of any children
you may have with the respondent.
Q. What happens if I miss my court date?
A. If you are a petitioner in Family Court, your
case will probably be thrown out and any temporary order of protection
you had will be gone on that day. If you are a respondent in Family
Court, the case can be done without you there (provided the petitioner
gave you notice of the case) and an order of protection can be issued.
As a respondent or defendant, a warrant may be issued for your arrest
in either a Family Court or a Criminal Court if you don't show up.
Q. What happens if an order of protection is violated?
A. If a respondent or defendant violates (disrespects)
an order of protection, the person with the order of protection can
call the police, who can arrest the respondent or defendant. The person
with the order of protection can file a "violation petition"
in Family Court, talk with the district attorney's office (or other
local prosecutor's office) or can go to the local Criminal Court.
The person with the order of protection can choose to do all three
of these things. Upon proof of the violation, the judge can make changes
in the order of protection and put the respondent or defendant on
probation. The judge can set a jail sentence.
Q. I moved to New York from the state that gave me an order of protection.
Is the order of protection good in New York?
A. An order of protection from
another state is still good in New York. You can get help on how to
register your order of protection in New York from your local Family
Court, Criminal Court, or police station.
Divorce and Separation
Q. What is a "spouse?"
A. A "spouse" is a husband
or wife.
Q. My spouse and I have a Separation Agreement on file in
the County Clerk's Office. I went to Family Court to get the child
support that the Agreement gives me and the court said I couldn't
get it there. What do I do?
A. The Family Court can't do anything with
a Separation Agreement. You can file a new petition for child support
in your county's Family Court or begin a divorce case in your county's
Supreme Court. Depending on the amount of money, you can sue to get
everything in the Separation Agreement in one of the civil courts.
Q. Where do I start a divorce?
A. In the Supreme Court of the county where you
or your spouse live.
Q. Do I need a lawyer?
A. Only you can decide that. Think how difficult
the divorce will be. If you think that your spouse will not fight
the divorce and that there are no other complicated or contested issues
like child custody, child support, or an order of protection, you
can ask the Court Clerk for a New York State Uncontested Divorce Packet.
There is no charge for the packet. The forms and instructions in the
packet might help you to do the divorce without a lawyer, but there
is no way to say for sure.
Q. Will the court appoint a lawyer for me free of charge
if I want one?
A. Court-appointed lawyers are usually not available
for divorces.
Q. I was served with divorce papers more than a year ago and haven't
heard anything since. Am I divorced?
A. Check with the County Clerk's
Office where you live and where your spouse lives now or used to live.
Q. How do I get a judge assigned to my case?
A. In Supreme Court you can get a judge assigned
after a form called a Request for Judicial Intervention (RJI) is filed
in court. You can get a RJI form from the Court Clerk's Office or
County Clerk's Office. The form must then be filed with the County
Clerk.
Q. Can I go back to my maiden name after the divorce?
A. Yes, but you have to ask for
it in your court papers.
Q. Can I change my children's last name in the divorce?
A. No.
Q. How can I look at my divorce case file?
A.
You can ask to do this at the County Clerk's Office.
Small Claims
Q. How much can I sue for in Small Claims Court?
A. Up to $3,000.
Q. What are the age requirements for filing a small claim?
A. You must be at least 18. A parent or guardian
must file for you if you are under 18. If the person being sued is
not yet 18, you must sue the parent or parents and provide first and
last names.
Q. How do I file a small claim?
A. Go to the Clerks Office (New York City Civil
Court, Nassau or Suffolk District Court, City Court, or Town or Village
Court). The Clerk will give you forms. You will need the name and
address of the person or business you are suing, the amount you are
suing for, and a brief reason why you are suing.
Q. What is the filing fee?
A. The fee is $10.00 if you suing
for $1,000 or less. It's $15.00 if you are suing for more than $1,000.
Q. Can I use a personal check or credit card for the filing fee?
A. In some courts. Please call the court where
you want to file the small claim.
Q. What does "DBA" mean?
A. "Doing business as."
Q. What is a "claimant?"
A. A claimant is the person suing in a small claims
case. The "defendant" is the person being sued.
Q. What happens if the person or business I sue doesn't come to
court?
A. You will still have to prove your case (for
example, bring bills, written receipts, photographs, written estimates)
and tell what happened. Then you may receive a "default"
judgment.
Q. If I win my claim, how do I collect my money?
A. If the defendant doesn't pay, you will have
to try to collect the money you have won. How you do this depends
on how much you know about the defendant's financial situation (pay
from work, bank account, motor vehicle, other assets). You may have
to file "information subpoenas" (ask the Court Clerk). Or
you may need the assistance of a sheriff or city marshal.
Q. How long do I have to collect my judgment?
A. Twenty years.
Q. If I don't like a Judge's or a Hearing Officer's decision, can
I challenge it?
A. Yes. It's called an "appeal." There
are different kinds of appeals. Please ask the Clerk. If you agreed
to have your case handled by an "Arbitrator" (someone who
isn't a judge), instead of by a Judge or a Hearing Officer, you are
not allowed to appeal.
Housing (Landlord-Tenant)
Q. What is a "notice of eviction"?
A. A notice of eviction is a written notice from
a city marshal warning a tenant that he or she has to move out.
Q. I received eviction papers called a "Notice of Petition"
and a "Petition" saying that I didn't pay my rent. What
should I do?
A. If you aren't going to have a lawyer for the
case, go to the Clerk's Office of the court named in the papers within
5 days of receiving them. Call your lawyer immediately if you have
one.
Q. What happens if a tenant doesn't answer the legal papers or a
landlord or tenant misses the court date?
A. If a tenant does not answer the court papers
or misses a court date, the landlord could win a judgment which could
make an eviction. If a landlord misses a court date, the case could
be thrown out.
Q. What should a tenant bring to court?
A. A tenants should bring all money order receipts,
canceled checks, or other receipts related to rent payment. A tenant
should also bring a copy of the lease and lease renewal, if any, and
records, including pictures and notes about problems with the apartment.
Bring receipts for materials purchased to repair the apartment, if
any.
Q. What happens if I need a postponement (a later court date)?
A. Ask for an "adjournment," which is
the same as a postponement. Sometimes both parties can agree to "adjourn"
the case to another day and let the judge know that. When they do
not agree, the person wanting the adjournment must ask the judge for
one.
Q. In an eviction case, what happens if a tenant and a landlord
can't agree?
A. They will have a trial. The landlord will have
to prove the case. If the landlord can't prove the case, it will be
thrown out; if the landlord proves the case, the landlord will get
a judgment against the tenant for the eviction.
Q. What is an Order to Show Cause?
A. An Order to Show Cause is a written request to
bring the case to a Judge for a reason or reasons in the Order to
Show Cause papers. An Order to Show Cause must be signed by a judge
and will state the date, time, and courtroom for the court hearing.
Q. What is an inspection?
A. In a case where a tenant claims that items or
conditions in an apartment need repair, an inspector (who is not in
the case) can be sent to the tenant's apartment to look at the claim.
A tenant may request an inspection when he or she first comes to the
Clerk's Office or on the first court date.
Q. What is an HP action?
A. This is a court case started by a tenant to
have a landlord make repairs to an apartment. (The "H" is
for "housing" and the "P" is for "part.")
Usually, the cost to start an HP action is $35.00. If a tenant can't
afford the filing fee, he or she can get forms from the Clerk for
starting the action without paying the fee. A court can order an apartment
inspection date and a date, time, and courtroom where the tenant and
landlord must go.
Civil Cases for Money Damages Over $3,000 (not Small Claims)
Q. Do I need a lawyer for these types of cases?
A. You are allowed to handle a case without a lawyer,
although these kinds of cases are often complicated. It's up to you
to decide. A person going to court without a lawyer is called "self-represented"
or "pro se."
Q. How do I start a case?
A. One way is to go to the Clerk's Office. You
will need to know the reason for the lawsuit, the amount of money
involved, and the correct name and address of the person or business
you want to sue. The case begins with filing a summons and complaint.
Q. What are a summons and a complaint?
A. A summons is a notice telling the person or
business you are suing that a lawsuit has been started. A complaint
is a document telling the person or business the reasons you are suing
and what you want (for example, how much money). There are rules for
using the summons that the Clerk can explain.
Q. What is a counterclaim?
A. Once the person you are suing comes to court,
that person can sue you within the same lawsuit. This is called a
counterclaim.
Q. What are a plaintiff and a defendant?
A. A plaintiff is the person starting the lawsuit.
A defendant is the person who is being sued.
Q. What usually happens on the first court date?
A. A judge will look at the case and may discuss
the possibility of settlement or agreement. If the case is not settled,
it will be scheduled for arbitration or a trial depending on the court.
Q. I received a summons and complaint. What should I do?
A. Carefully read the papers you received. You
will find the deadlines for filing an "Answer." You must
file an answer to avoid automatically losing the case. You may want
to go to the Clerk's Office of the court named on the papers to discuss
filing the answer. The answer must include the name of the case and
must be notarized. It should include your "defenses" (for
example, why you do not believe you owe the money). It can also include
your counterclaims.
Q. Can I have a jury trial?
A. The plaintiff and the defendant both have the
right to ask for a jury trial when the lawsuit asks for money. You
must ask for a jury trial in writing and within certain time limits.
You must follow the rules for notifying the defendant about your request.
There is a filing fee. The clerk's office can explain the requirements
to you.
Q. What happens if a plaintiff or a defendant doesn't come to court?
A. If a plaintiff doesn't come to court on the
scheduled court date, the case can be thrown out. If a defendant doesn't
come to court, the case may be decided against the defendant with
a "default judgment."
Q. I paid a judgment against me, but the records don't show this.
What should I do?
A. It is possible that the plaintiff did not file
a document called a "satisfaction of judgment." You can
contact the plaintiff (or the plaintiff's lawyer)to find out if this
document was filed or when it will be filed. If this does not work,
you can write a letter to the court explaining the situation and showing
proof that you paid the judgment.
Surrogate's Court: Estates, Guardianship, Adoption
Q. What is a "surrogate"?
A. A surrogate is someone who has permission to take care
of someone else's business and personal things. The "Surrogate"
who decides the cases in Surrogate's Court is the court's judge.
Q. How do I transfer personal property, such as bank account, nursing
home account, or automobile thatwas in the name of a person who died?
A. You will need authority from your county's Surrogate's
Court to administer (handle) the person's estate. Talk to the Court
Clerk. Procedures depend on whether there was a will and on the size
of the estate, among other things. You may also want to contact the
Department of Motor Vehicles about how to transfer a next of kin's
automobile; there are special rules.
Q. I am the executor of a will. How do I get the will admitted to
probate?
A. You should know that in nearly all cases where
the deceased left a will, the executor is represented by a lawyer.
The original will needs to be filed in court with a probate petition
and other papers. Then a variety of procedures come after that. Sometimes
it's difficult. If you are going ahead without a lawyer, start by
calling the Court Clerk.
Q. How do I find an estate file?
A. Most Surrogate's Court records are public records.
Call ahead to the court to learn whether the file exists and give
them time to find them.
Q. How do I obtain guardianship (control) over a child and a child's
property?
A. The Surrogate's Court Guardianship Department
can give forms and help on how to fill them out. You will need to
show the child's birth certificate and other information. Then an
investigation and other procedures usually happen. You can also ask
for guardianship over a child in a Family Court.
Q. How can I obtain information about an adoption?
A. Adoption records are not public. You have to
get a court order to open them after they are sealed at the time of
the adoption. Ask the Adoptions Clerk of the Surrogate's Court (or
Family Court, if the adoption was approved there) in the county where
you believe the adoption happened. Please be aware that requesting
the unsealing of an adoption record is a kind of case where the advice
and other help of a lawyer may be needed for success.
Criminal Cases
Q. Where do I find a bail bondsperson?
A. These people don't work for the court system.
Many courts have a list of names available for the public. You may
also look in the Yellow Pages.
Q. How do I post bail and when do I get it back?
A. The Court Clerk will tell you the type and amount
of bail to be posted and how to do it. Bail is a way to be sure you
show up in court. Bail can't be returned until the case is finished
or bail is lowered or you are released in your own recognizance or
returned to jail. There is a surcharge on cash bail (3% of the amount)
which is not returned if there is a conviction.
Q. I have a warrant outstanding. If I come to court, will the judge
put me in jail?
A. A warrant will not stop until the person makes
a personal appearance in court. It's up to the judge about jail.
Q. I've been arrested. What will happen to me in court?
A. It is important to appear on the date you have
been given. On the first court date, the judge will explain the charges
and you will be given a copy of them. If you do not have a lawyer,
the judge will decide if you can have a lawyer free of charge. The
issue of bail will be discussed.
Q. I was a crime victim. Do I need a lawyer to prosecute the accused?
A. The district attorney's office or other local
prosecuting agency represents "the people" in all criminal
cases.
Q. There has been an indictment in my case. What happens next?
A. There will be a date scheduled for an "arraignment"
of the indictment. At the arraignment, a plea will usually be entered
and the issues of bail and your right to a lawyer will be discussed.
Q. The Court imposed a fine and a surcharge in my case. What do
I do?
A. Talk to the Court Clerk about how to make payment
with the court-ordered collection agency.
Q. How do I appeal?
A. A Notice of Appeal must be filed. Talk to the
Court Clerk about time limits and who must get the notice.
Q. What is a Certificate of Relief From Disabilities and how do
I get one?
A. An "Eligible Offender" may get this
certificate so they don't have certain restrictions because he or
she was convicted of a crime. (Examples of these restrictions may
include giving up property or not being able to have certain jobs.)
An application for this certificate is available from the Clerk's
Office.
Traffic Cases
Q. I got a traffic ticket. Where do I go?
A. The name and address of the court is listed
on the ticket with the date and time that the case will be heard in
court.
Q. What will happen if I do nothing about the ticket?
A. A warrant can be issued for your arrest and
your license can be suspended.
Q. What happens if I plead guilty?
A. A fine and mandatory surcharge can happen. Also,
if the charge is a moving violation like speeding, red light, or stop
sign, points will attach to the driver's license that can make the
driver's auto insurance rates higher. Certain traffic infractions
can result in a jail sentence of up to 15 days.
Q. What happens if I plead not guilty?
A. Your case will be scheduled for trial. You can
decide to change your plea later. You can try to work out an arranged
sentence with the prosecutor, and find out if the court will agree
to the arrangement.
Q. What is a supporting deposition?
A. A supporting deposition is a document that has
information about why the ticket was given, the time and location
of the stop, and other information about what happened. If you want
to see that document, you can check the box on the ticket for this.
Q. Why can't the court accept my insurance card as proof of insurance
of my vehicle?
A. You can still have an insurance card after your
insurance has been canceled. That is why an original letter from the
insurance company or agent is required.
Q. Do I need a license to attend driver's improvement school?
A. Yes.
Q. My license was suspended. How do I get it back?
A. After getting written permission from the judge
who made the decision, an application can be made to the Department
of Motor Vehicles (DMV). Final approval is with the DMV.
Q. I was charged with DWI and my license was taken away. My case
was then dismissed but the DMV won't give me back my license. What
do I do?
A. The final determination about giving back the
license is with DMV.
