Checklist for Responding to a Business Lawsuit in New York

When you are served with legal papers it is important that you immediately contact a NY business litigation attorney as there are strict time periods in which to interpose a response.

There are a variety of papers that can be served on you. In a business litigation, the most common commencement document is the summons and complaint.

There are a variety of responses which can be provided when served with a summons and complaint and it is important that you consult with counsel to determine what type of response is best for you. Broadly speaking, two most common types of responses are an “answer” or a “motion to dismiss”.

Contrary to what name might imply, an “answer” to a complaint is not usually the place to provide a narrative response to the allegations set forth therein. Rather, it is the opportunity to address each allegation set forth in the complaint, stating whether you “admit” that allegation; “deny” that allegation; lack sufficient information to deny or admit or the allegation; or provide such other response to that specific allegation. You can also assert defenses to the claims in your answer- which are known as affirmative defenses. Common affirmative defenses asserted in a commercial litigation matters include, by mere example and without limitation, that the complaint “fails to state a cause of action”; that you have a defense based on “documentary evidence”; and/or that the court lacks personal jurisdiction over you (whether because of improper service or otherwise). The answer is a critical document and it is important that you work with a New York business lawyer in preparing same.

Yes. You can assert counterclaims against the plaintiff and cross-claims against the other defendants.

Yes it is still timely provided that it was timely when the plaintiff commenced the action. If the time period for asserting counterclaim had already expired at the time that the Plaintiff had commenced the action, it can still be timely asserted provided that it meets certain criteria for being related to the claim asserted in the complaint. In such instance, however, the counterclaim can only serve as a set-off against the amount demanded in the complaint. The determination as to whether a counterclaim is timely is complicated and should always be done in consultation with counsel.

A motion to dismiss is an application made to the court where a request is made to dismiss some or all claims asserted in the complaint. Sometimes a motion to dismiss is made to dismiss the claims only as asserted against a certain party or parties whereas other times it is made so as to dismiss the complaint against all of the parties. There are many forms of motions to dismiss. One of the most common is a motion to dismiss for failure to state a cause of action. With respect to this type of motion, all of the allegations in the complaint must be accepted as true. So, for example, if a complaint purports to set forth a claim for breach of contract and (regardless of whether the allegations are true) a court finds that it does not, the claim will be dismissed. Other grounds for dismissing the complaint include, by mere example, improper service of the summons and complaint, the passing of the statute of limitations, and lack of subject matter of jurisdiction. A motion to dismiss is a very useful tool for the defendant since, if it is successful, it can terminate the action (or at least lessen the scope of the action) as asserted against that defendant at the outset of litigation, potentially resulting in a tremendous savings in litigation costs. The decision as to whether or not to make a make a motion to dismiss is an important one and should always be made in consultation with counsel.

In actions commenced in New York state court, litigants are sometimes served with a document called a “Summons With Notice” rather than with a summons and complaint. If you are served with a such document, it is important that you contact a skilled New York business litigation attorney immediately to determine how you should respond as there are strict time periods for demanding a complaint.

When retained to represent a defendant, we provide counsel on issues pertaining to responding to the action so as to best ensure that you are effectively defended with respect to same. Please contact us today to discuss your matter.