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Understanding Civil Litigation14 Oct 2013

Our Knowledgeable Team Of Litigators, Helping You Understand New York Litigation

All civil litigation arises when private parties cannot resolve their disputes without resorting to the courts. The types of actions and claims that can exist, however, are as varied as the shades of the rainbow. We at Raiser and Kenniff pride ourselves as seasoned litigators who can help you navigate the uncertain waters of commercial disputes and civil suits in New York.

A civil lawsuit in New York is commenced by a party filing a Summons and Complaint with the court. The filing party is called the Plaintiff (or Petitioner). The Plaintiff formally delivers a copy of the Summons and Complaint to the person or entity they are suing- the Defendant (or Respondent). The Defendant responds to the Summons and Complaint with an Answer (or a Motion). Collectively, these papers are called Pleadings. Many civil lawsuits do not go to trial and are resolved through settlement or a form of alternative dispute resolution such as a mediation or an arbitration.

The Summons And Complaint

A Summons is a written notice that is delivered to the party being sued. They must answer the Complaint attached to the Summons within a specified amount of time. In the Complaint, the Plaintiff outlines why they are suing the Defendant, the harm that has been caused, and the legal basis under which the defendant may be held liable.

The Answer

The Defendant has a certain amount of time to respond to the Complaint. In this Answer, the Defendant responds to the claims asserted in the Complaint. The Defendant may also file a Counterclaim in which the Defendant may allege that the Plaintiff has caused harm and the legal basis under which the Plaintiff may be held liable. The Plaintiff may file a Reply to the Defendant’s Counterclaim.


After all the pleadings are filed with the court, each party may request and obtain evidence from the other party through a process called Discovery. Discovery may be conducted through Interrogatories, Requests for the Production of Documents, Requests for Admissions, or Depositions. Evidence may also be obtained from someone or an entity that is not a party to the lawsuit through a Subpoena. A Subpoena is an order that either compels testimony or production of documents.

When you are commencing or responding to a civil lawsuit, it is important to have experienced civil litigation attorneys by your side.

Emergency Relief

A case working its way through the legal system can seem like forever, especially in New York, where the courts are frequently overburdened. Where there is an immediate threat of harm to you or your case, however, you may file for a Temporary Restraining Order (TRO) or a Preliminary Injunction.

Temporary Restraining Order

A Temporary Restraining Order, commonly referred to as a “TRO,” is considered an extraordinary measure because it may be obtained without giving notice to the adverse party, and it is granted before a hearing on the matter can be had. A TRO is issued by the court only when the party requesting the TRO can show that immediate, irreparable injury, loss, or damage will result unless the adverse party is restrained. Once the TRO is granted, the court will set a date at the earliest possible time for a hearing for a Preliminary Injunction conference or hearing.

Preliminary Injunction

A Preliminary Injunction is where the court orders an injunction or restrains a party from continuing with a course of conduct before there is a final determination in the case. In order to receive a Preliminary Injunction, you must demonstrate four different factors: (1) there is a substantial likelihood that you will win on the merits of the case; (2) there is a substantial threat of irreparable damage or injury if the injunction is not granted; (3) the harm to you outweighs the harm to others; and (4) the granting the Preliminary Injunction will serve the public interest.

Where there is significant and immediate threat of harm to you, your business, or anything regarding your case, it is important to have an experienced civil litigator on your side to skillfully argue for your interests.

Motion Practice

A Motion is made when you want to request an Order from the court. A Motion can be made either through Notice of Motion or Order To Show Cause. The Motion papers notify the adverse party of the relief requested and the date, time and location where the request will be made. These papers must be served on the adverse party.

A Notice of Motion

The party making the motion (moving party) chooses the date where the Motion will be heard by the court. Under New York standards, you must ordinarily pick a date that gives the adverse party at least 8 days notice. The Motion must also include the full address of the courthouse, part or room number where the motion will be heard and the relief you are requesting.

An Affidavit (or Affirmation) must accompany the Notice of Motion. An affidavit is a sworn statement made before a notary public which explains your issue to the court and the legal basis for why your relief should be granted. The affidavit should include all the relevant facts in your case, the reason for your request and should state whether you have requested this type of relief before or not. If you referred to any other documents in your affidavit, you must attach those documents to the Affidavit for the court to review.

A copy of the Motion must be served on the adverse party. Once the Motion is served, the person who served the motion must fill out an Affidavit of Service attesting to the date and manner in which the motion was served on the adverse party. Once the Affidavit of Service is complete, copies of the Affidavit of Service and the Motion are filed with the court. If you have been served with Motion papers, you can file a Notice of Cross Motion dated for the same day as the Motion so that the court can hear the sides of both parties.

Order to Show Cause

An Order To Show Cause (OTSC) differs from a Notice of Motion because it involves immediate court intervention. In the OTSC, the moving party presents the reasons why the court should order the requested relief to the judge. Just like a Notice of Motion, an OTSC cause states the date, time and location where the request will be made. Also just like a Notice of Motion, the OTSC is supported by an Affidavit (or Affirmation). The OTSC also differs from the Notice of Motion because the adverse party is not served until the order is signed by the judge. Once the order is signed by the judge and returned to the moving party, the moving party must serve the adverse party by the date specified by the judge.

Modifying Agreements And Orders

After an agreement is signed by both parties, there may be cause to change it. You may want to change the dates specified within the agreement, add additional items to the agreement, change the payment terms, or modify or rescind it based on one side’s failure to perform or materially changed circumstances. Generally, modification or recission of an agreement requires the consent of all parties to the agreement or the order of a court.

An order is an official proclamation from the judge defining legal relationships or granting or denying requested relief. An order may be modified by appeal, motion to vacate, motion to reargue, motion to renew, or by resettling a judgment or order. Orders can be specific to agreements applicable to parties and Raiser & Kenniff can assist you with obtaining the proper order to modify or rescind an agreement.

Enforcing Judgments

The party who is awarded a Judgment is called the Judgment Creditor, and the party who owes the amount awarded is called the Judgment Debtor. Once the case has terminated, a Notice of Judgment will be sent. It will specify the amount of money awarded along with ways to collect the Judgment. The court will not collect the awarded money on behalf of the Judgment Creditor, but if there are problems collecting the money from the Judgment Debtor, there are ways to enforce the Judgment with the help of the court and an experience attorney.

For example, if the Judgment Debtor is not voluntarily paying, an enforcement officer can be contacted. An enforcement officer is either a sheriff or a city marshal, not the local police. The enforcement officer will request an execution from the court. An execution is a court order that allows the enforcement officer to collect the money from the Judgment Debtor. The enforcement officer will need to know what assets the judgment debtor has. If you do not know if the judgment debtor has assets or where they are located, you can use an information subpoena to find out.

Another way to enforce the Judgment is through the use of an Information Subpoena and Restraining Notice. An Information Subpoena is a legal document that requires or the Judgment Debtor to answer certain questions about where the Judgment Debtor’s assets can be found. Once the enforcement officer has the necessary information about the Judgment Debtor’s assets, a Restraining Notice may be served on the judgment debtor’s bank. If the Judgment Debtor is employed, his or her wages may be garnished.

Experienced Commercial Litigators In New York

The legal process can be intimidating and confusing. We at Raiser & Kenniff, PC, can guide you every step of the way. To schedule a free 30-minute consultation with one of our dedicated attorneys, contact us by phone at 516-742-7600 or online.

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