Preparing A Claim

Collect all the information and evidence before you file.

The small claims process can be broken down into four basic parts: preparation, filling out the Initial Claim form, filing the Initial Claim form, and having your hearing in small claims court.

Above all, never be reluctant to call the court clerk to obtain new information or verify current beliefs. When you call, state who you are and what your objective is. For example: "Hello this is Ms. Demonet, I am an individual, nonincorporated person, and I live in Downtown Brooklyn; the party I want to sue in small claims court is an incorporated entity who resides in Queens. What is the closest court to me in which I can file an Initial Claim form, and what is the fee for filing?"

Before filing your claim, verify the following information:

• That the person you are suing is not a minor – i.e., under 18 years old;

• That the person you are suing is the person who is responsible for the payment of your bill or can be held coresponsible for the payment of your bill;

• The correct name and address where the person you are suing works or where the person lives; you must have at least one of these two items, otherwise the Initial Claim form cannot be filed. (A post office box number is not acceptable.)

  PLANNING TIP One approach that I have used successfully is a search of the voter registration records: Every county has an office for its board of elections, which keeps a record of the name, address, and birth date of every registered voter in that county. Under the Freedom of Information Act you are legally entitled to have this information. You can go to the office of the Superintendent of the Board of Elections (or mail in your request, cost $1 to $3) and ask for the current address of the plaintiff.

• The person's employer's name and address. You must have this item, or obtain it later, to garnish the debtor's wages.

• The correct name of the person you intend to sue.

  If you are suing an individual, be certain you use the correct first and last name. Nicknames and initials are not accepted. On the other hand, if you are suing a corporation you may wish to sue both the corporation and its manager-owner.

  If you are suing an (unincorporated) proprietorship, you would sue John Smith d/b/a (doing business as) Smith Hardware. The name of the person under which an unincorporated proprietorship is registered can be found in the county clerk's office in which the business is located. All legitimate business owners must register their businesses. The owner must file an X201 Business Certificate, also known as a d/b/a/ or assumed name certificate, in which he provides the name of the principal owner(s) and the real name under which the business operates. For example in the county clerk's office in Brooklyn you can use the computers they provide at no cost to access the information on the business certificate if you have either the name of the business or its address. The clerk's office started computerizing this information beginning March 1992. If however a business was opened prior to this time, it was registered by name in alphabetical order in large registry books, which makes it a bit more difficult to gather the real name of the business and its owner. You must first get an index number from the large registry book and then go to another nearby room to pull the business certificate to see it.

  When you sue a corporation or partnership, keep in mind that some of them use assumed names and that obtaining the correct name of the entity will make later proceeding much easier.

  NOTE When you sue a corporation, you must first obtain the name under which the corporation is registered. This information is readily available from the Secretary of State, who keeps records of all corporations doing business in the state.

• That the court you want to sue in has the jurisdiction, or power to hear the case, and whether there are other more convenient courts that you could use.

Be sure of the following:

• That you have the debtor's correct Social Security number (very helpful, especially in beginning the garnishment process and locating the place of employment and other useful information)

• That you have a proper Statement of Claim (cause of action): See for a list of most, if not all, of the causes of action in small claims court

• That you have assembled the proof that you are going to place before the judge or arbitrator to substantiate your claim of monies owed to you.

A winning case can be built using:

1. Signed contract or documents showing the agreed upon fee for the service or cost of the goods; lacking a valid contract, a written version of your oral agreement with the defendant

2. The defendant's ledger card (statement of the account) showing payments made and the balance due

3. Canceled checks and checks returned for insufficient funds, account closed, etc.

4. Treatment or account transaction information

5. All bills and receipts that were incurred as well as any other documents that are relevant to the case (e.g., letters to and from the plaintiff or defendant)

6. Witnesses who are willing to come to court to give relevant testimony on your behalf as well as witnesses who may be unwilling to be present

7. An itemized bill or invoice, receipted or marked paid; or itemized estimates from at least two other places of business for plaintiffs who are seeking reimbursement for replacement of goods or repair of the damage or defective workmanship

8. Photographs when applicable

9. The item or object in dispute.

If possible, the plaintiff should make efforts to identify the reasons why the defendant is refusing to pay the bill or otherwise compensate him. This will help the plaintiff determine what is the best proof to document his claim. In my early case presentations at hearings before the arbitrator I would bring far more than was needed. Slowly I learned that arbitrators were not inclined to examine dental models, X rays, and photographic documentation. In plaintiff-defendant cases where workmanship is at issue, if the defendant actually comes to the hearing to contest your claim, he must support his claim in a substantive way. That cannot be done by simply making allegations or offering letters obtained from so-called experts. The experts must be present to give testimony. In essence each provider of a service must decide the nature of the proof required to support his case. Rarely, if ever, will that proof need to be of a technical nature, at least not in small claims court.

Finally, it is wise to have recently sent a request for payment of services; regular mail will do. Certified, return receipt will prove they received it.

WARNING If you are an incorporated entity or business, it is mandatory that you first mail (certified, return receipt requested) a "demand letter" to the debtor. In the demand letter you make your request for payment and state your intention to sue if you are not paid; then you may file the Initial Claim form. The demand letter must be sent at least 10 days before filing the Initial Claim form. A letter that is sent more than 180 days before filing the claim is not valid. There is an affidavit on the back of the Initial Claim form that you must sign attesting to the fact that you have sent a demand letter.

Once you have found out the information listed above and have assembled your supporting evidence you are prepared to initiate your claim.