We often talk about filing a lawsuit. In reality, the technical action involves filing a Summons and a Complaint. Together, these papers are part of what are called the “pleadings”. These documents tell the Court what happened and explain what relief you want the Court to provide. They also compel the defendant to appear in Court to answer the allegations.
The Summons and Complaint are the first papers filed with the court and they start the lawsuit. Because this is an action between two parties that does not involve criminal charges, the case is known as a civil action. In these papers, the person on whose behalf a lawyer files the papers is known as the plaintiff and the party that person sues is called the defendant.
The Summons literally “summons” the defendant to answer the Complaint. We must include the following in the Summons:
- The name and address of the defendant: The top of the Summons is called the caption. This must include the exact name and address of all parties named in the Summons. When I prepare a Summons, I want to make sure that I have the name correct. Therefore, I verify corporate names and addresses with the New York Secretary of State. Getting a name or address wrong can invalidate the papers.
- The State and County in which we will file the case: In general, we can only bring a suit in a State or County where one of the parties resides. If the parties both reside in New York, but in separate counties, then we can chose in which County we want to bring the action. If both parties reside in separate states, the case may be brought in a Federal court.
- The Court in which we will file the case: New York has four levels of courts in which a civil action can be brought:
- Small Claims Court: This court is reserved for cases with a maximum value of $5,000.
- New York Civil Court: This court is reserved for cases with a maximum value of $25,000.
- New York Supreme Court: This court hears cases with a value that may exceed $25,000. Though this court hears cases with a potential value over $25,000 that does not guarantee that a jury award will exceed $25,000.
- The New York Court of Claims: This Court is the exclusive forum for civil litigation seeking damages against the State of New York or certain other State-related entities such as the N.Y. State Thruway Authority, the City University of New York and the N.Y. State Power Authority.
The Summons gives the defendant a maximum of thirty days to respond to the Complaint. If the defendant does not respond to the Complaint within thirty days, the Court views that as an admission that the Complaint is accurate and the defendant admits to the charges. We can return to Court to file a judgment against the defendant and proceed to seek damages.
It is extremely rare for a defendant not to answer Summons. Typically, when a defendant fails to answer the Complaint within thirty days, the Court will extend its time to answer the Complaint if the defendant requests an extension because the Court prefers that cases be resolved on their merits and not upon technical errors or missed deadlines.
The Complaint states the allegations against the defendant and the relief sought. The Complaint speaks in general terms and covers all possibilities that may arise in a case. The Complaint can speak in general terms because we must supply more specific information later in the process in the Bill of Particulars.
It is important to address all possible allegations in the Complaint because if we leave something out, it is difficult to add it later. The relief is stated in very general terms. For example, the complaint may simply state that we seek a judgment in excess of $25,000, which is the limit of the lower civil courts. There is no need to cite a specific dollar amount sought.
The Complaint must include the following information:
- The name of the defendant(s) and why we are claiming that they are responsible
- What happened to the plaintiff as a result of the defendant’s conduct
- Where it happened
- When it happened
- What did the defendant(s) do wrong?
- What relief are we seeking from the defendant(s)?
When I prepare a Complaint, I number each paragraph and each paragraph is limited and precise in what it says. The defendant(s) must respond to this Complaint and the more precise the allegations, the more difficulty they will have answering those allegations.
Serving the Summons and Complaint
After preparing the Summons and Complaint, we must file them with the Clerk for the County and Court in which we have filed the case. In New York, this involves paying a filing fee of $210.
Once we file the Summons and Complaint, we need to serve the documents on the defendant(s). The person who serves the documents must be over the age of 18 and cannot be a party to the suit. Generally, attorneys will retain a Process Server to serve the Summons and Complaint.
There are three options for serving the Summons and Complaint:
- Personal Service: This requires that the process server give the Summons and Complaint directly to the defendant. I usually rely on Personal Service when serving a Summons and Complaint on an individual, such as a driver in a motor vehicle case or a doctor in a medical malpractice case.
- Substituted Delivery: This requires that the process server give the Summons and Complaint to someone other than the defendant at the defendant’s residence or place of business. For a corporation registered in New York State, we can serve the summons on the New York Secretary of State, who then notifies the corporate contact on file. The attorney must follow this service with a mailed copy of the Summons and Complaint.
- Conspicuous Delivery: If we cannot find the defendant or someone at the defendant’s residence or place of business, then the process server can leave the documents in a conspicuous location at the residence or place of business. This delivery option is sometimes known as “Nail and Mail,” because we follow with a mailed copy of the Summons and Complaint.
In all three options, the process server must provide the attorney with an affidavit of service, which is a sworn statement stating that he served the Summons and Complaint. The attorney then files the affidavit of service with the court.
The cost of using a process server ranges from $100 to higher depending on the number of defendants and the difficulty of serving the Summons and Complaint.
Once we have filed and served the Summons and Complaint, we have started the legal process in the courts. The defendant will then respond and we will exchange additional documents, including the Bill of Particulars, which further explains the allegations, and we will begin the Discovery Process, which involves exchanging information.
I hope you found this information helpful. The legal process involved in prosecuting a civil suit has many parts to it and serving the summons and complaint is just one part. I will write about each part of the process at my blog, New York Law Thoughts. If you have questions or believe you have a personal injury or medical malpractice case, I will be glad to answer your questions and assist you. You can call me at 1-800-660-1466 or email me. You can also visit my website or read more on my blog, New York Law Thoughts.
Carol L. Schlitt
New York Personal Injury Attorney
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.