Litigation

How are goods delivered if someone else has possession of them?

by Fred Abramson

It is not unusual where you may be pur­chas­ing goods that a third party has pos­ses­sion of, such as a ware­house or a bailee.  In such an instance, you should be clear in the con­tract where the deliv­ery should be made.

Under the UCC, which cov­ers the sale of goods, if the con­tract is one for goods that are iden­ti­fi­able and are known by both par­ties to be in a loca­tion that is not in pos­ses­sion of either party, then deliv­ery is where the goods are located.   If you agree to pur­chase a car, and the car is located in ware­house owned by some­one else, then the buyer has to pick up the car at the warehouse.

Attachment of Property in New York — Provisional Remedies

by Fred Abramson

The attach­ment of prop­erty is a strong weapon when used prop­erly in New York. A busi­ness­man who is hav­ing finan­cial prob­lems decides not to pay for goods that he pur­chased.  If your com­pany is the cred­i­tor, it could take years before he will have to pay. At that time, the funds could be depleted.  One key pro­vi­sional rem­edy that a cred­i­tor can seek is to obtain an attach­ment.  Here, the cred­i­tor can obtain an attach­ment on the bank account and the busi­ness­man would not be able to use the money. Even though the plain­tiff is not able to use or obtain the funds, the busi­ness­man will not have the lux­ury of time and would be more moti­vated to settle.

Attach­ment of prop­erty can have dev­as­tat­ing effects on the busi­ness­man.  Attach­ments can be ordered by the court ex parte, mean­ing that the busi­ness­man will have no notice.  This could cause checks to bounce and dras­ti­cally alter the abil­ity for a small com­pany to con­duct business.

In order to obtain an order of attach­ment, the cred­i­tor would have to show, as per CPLR 6201(a): 1. that \“there is a cause of action\” and that the plain­tiff will prob­a­bly suc­ceed on the mer­its; 2. that at least one of the grounds of attach­ment found in the law exists;  and 3. that the amont asked for in the law­suit exceeds any coun­ter­claims that the cred­i­tor has knowl­edge of.

If an order is granted, it is directed to the sher­riff, not the defen­dant. Some orders are granted with­out notice to the businessman.

If you have a ques­tion about pro­vi­sional reme­dies such as attach­ment of prop­erty in New York, act now and con­tact the Law Office of Fred­eric R. Abram­son at 212–233-0666. Feel free to keep up to date on all New York Busi­ness Law issues by vis­it­ing my blog.

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Attachment of Property in New York Provisional Remedies

How long do I have to sue? The New York Statute of Limitations

by Fred Abramson

Cen­turies ago, there was no fixed time start a law­suit.  The Statute of Lim­i­ta­tions was enacted to pro­tect defen­dants against defend­ing old law­suits after a rea­son­able time has passed.  The law has spe­cific pro­vi­sions that pre­scribe how long a plain­tiff has before start­ing a law­suit. If you fail to com­mence your law­suit within the statute of lim­i­ta­tions, your case is gen­er­ally dismissed.

As a gen­eral rule, it is wise to begin a law­suit within at least six to eight months before the statute of lim­i­ta­tions expires. The rea­son for this is because the law is often quirky.  For exam­ple the law requires the plain­tiff to serve the defen­dant.  By allot­ting a six-eight month win­dow  before the statute of lim­i­ta­tions expires, it would be pos­si­ble to re-serve the defendant.

The spe­cific time peri­ods regard­ing the statue of lim­i­ta­tions can be found in the New York Civil Prac­tice Law and Pro­ce­dure Arti­cle 2.

If you have a ques­tion of how the statute of lim­i­ta­tions impacts your case, con­tact my law office by phone at 212–233-0666 or via email at fabramson@abramsonlegal.com

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How long do I have to sue? The New York Statute of Limitations

Your small business is a party to a New York Civil Litigation lawsuit. How can you protect yourself?

by Fred Abramson

You are sit­ting in your office on the busiest day of the year, and just when you think noth­ing else could go wrong, a per­son walks in and utters the fate­ful words “You’ve been served”, while hand­ing you a stack of papers.   Your busi­ness is a party to a New York civil lit­i­ga­tion law­suit. Your busi­ness has  just been sued.  What is the best course of action you can take, and how can you pro­tect your­self as well as your business?

Your small business is a party to a New York Civil Litigation lawsuit. How can you protect yourself?

Who?

Read the papers that are given to you to find out the party that is suing you and the type of civil lit­i­ga­tion you are involved in.  Is it a cor­po­ra­tion, a part­ner­ship, or an indi­vid­ual?  Are they a cus­tomer or a sup­plier of your busi­ness? Who is the lawyer rep­re­sent­ing the party that is suing you?  This infor­ma­tion will help your attor­ney obtain a more favor­able result for you by research­ing the other party and its coun­sel. (Do they set­tle often?  Are they a big com­pany?  What are their finan­cial resources?  Do they have a rep­u­ta­tion to main­tain and there­fore may want to set­tle quickly?).

What?

What exactly are you being sued about?  Is it a breach of con­tract claim? Is it a non-payment claim, or a non-performance claim?  Those are many rea­sons why a busi­ness may be sued.

When?

In Civil Lit­i­ga­tion, tim­ing is crit­i­cal in a law­suit.  Responses must be filed within a set period, which in New York is  usu­ally within 30 days.  While an exten­sion can be granted, don’t wait until the last minute to con­tact your attor­ney.  It takes time to pre­pare an appro­pri­ate answer to the papers.  If you do not respond in a timely fash­ion, you will be con­sid­ered in default, and a judg­ment may be taken against you.  This means you may lose the case with­out the oppor­tu­nity to pro­vide a defense.

Also, don’t assume you are judg­ment proof, because judg­ments can be col­lected from future earn­ings as well as assets.  In addi­tion, do not assume that your insur­ance cov­ers every­thing, although it may be wise to notify your insur­ance car­rier as well as your attorney.

Where?

What court are you being sued in?   What county?  State or Fed­eral Court? You may be sued in a state far away if, for instance, you have done busi­ness in that state.  In that case, your New York attor­ney will have to obtain local coun­sel for your small busi­ness in the other state, and this takes time.

Why?

Why did the party resort to a law­suit?  Is it some­thing you can fix by hav­ing your attor­ney talk to the other side and nego­ti­ate a set­tle­ment?  Is there a run­ning ani­mos­ity between your com­pany and the other party, in which case set­tle­ment will be dif­fi­cult?  Do you need to file a coun­ter­claim against the other party?

How?

Imme­di­ately notify and sup­ply the civil lit­i­ga­tion  law­suit papers to your attor­ney.  Make sure you retain a pho­to­copy for your­self.  Inform your attor­ney of all the facts rel­e­vant to the case.  Your attor­ney will decide what is impor­tant and what is not.


Orga­nize your doc­u­ments per­tain­ing to the case so that you can min­i­mize the time the attor­ney must spend going through them.  This will save your attor­ney ’s time, and there­fore save you legal fees.  Do not talk to the other party’s attor­ney.  He works for the other party, just as your attor­ney works for you.  Let your attor­ney do this for you.  In addi­tion, remem­ber that in law, just as in any pro­fes­sion or busi­ness, there are rules and pro­ce­dures  your attor­ney knows and you may not.  To stay out of trou­ble, leave the legal work to your attorney.

A trial can take sev­eral weeks in New York, includ­ing prepa­ra­tion time.  There­fore, it may be in your best inter­est in cer­tain cases to set­tle.  How­ever, be real­is­tic in your set­tle­ment expectations.

Con­clu­sion

Hav­ing an ongo­ing attorney-client rela­tion­ship will help pro­tect you in the event of a civil lit­i­ga­tion law­suit.  The more your attor­ney knows about your busi­ness, the bet­ter the attor­ney will be able to help you.  In addi­tion, dis­cussing busi­ness options and prob­lems with your attor­ney ahead of time could help pre­vent a law­suit from ever start­ing.  Either way, it will save you money in the long run.

Please be advised that the above is for infor­ma­tional pur­poses only. If you have been sued, con­tact me at the Law Office of Fred­eric R. Abram­son at 212–233-0666.

Do you have a Default Judgment against you in NY? It may be void.

by Fred Abramson

The New York Attor­ney Gen­eral announced today that they are suing 35 law firms for improper ser­vice of default Do you have a Default Judgment against you in NY? It may be void. judg­ments. A party obtains a default judg­ment when the defen­dant does not appear in a law­suit. Amer­i­can Legal Ser­vice, a process server located in Long Island has been named by the Attor­ney Gen­eral as pro­vid­ing improper \“sewer\”  ser­vice.  The 35 law firms have not been accused of any wrongdoing.

If you wish to re-open a default judg­ment against you due to improper ser­vice based on the Attor­ney General\‘s action today you should:

1.  Go to the county clerk in the county where the default was filed and obtain the court file.  Check the affi­davit of ser­vice to see if Amer­i­can Legal Ser­vice was the process server.

2.  If you are unable to ascer­tain the name of the process server, check the law firm who started the law­suit.  If it is one of the 35 law firms listed in the Attor­ney General\‘s com­plaint then:

3.  File a motion to vacate the default for improper ser­vice of process.

At this point, it is unclear what the reme­dies would be for insti­tut­ing an action, espe­cially in cases where the statute of lim­i­ta­tions has run for vacat­ing a default.  In New York, the statute of lim­i­ta­tions is one year.  How­ever, the court or some other gov­ern­men­tal body may fash­ion new law based on this mass fraud.

Do you have a Default Judgment against you in NY? It may be void.