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Jeffrey Steven Feinberg

Jeffrey Feinberg’s Answers

449 total


  • My husband claims sending me divorce papers by regular mail is enough for me to be considered served in NY state. Is that true?

    Every website (including the New York Supreme Court's) states that divorce papers in NY state can only be served in person or by substituted service. My husband says he sent me paperwork by regular mail (not certified, no return receipt, no eviden...

    Jeffrey’s Answer

    You are correct about the method of personal service required in New York.

    Personal Service On a Person shall be made in one of the following three ways (See CPLR 308):
    1. Personal Delivery - delivering the papers within New York State to the person to be
    served.
    2. Substituted Service - two steps, both of which are required:
    Step 1: Delivering the process within New York State to a person of suitable age and discretion, who is willing to accept the papers, at the actual place of business, dwelling place or usual place of abode of the defendant or respondent.
    and
    Step 2: Mailing the papers by first class mail to the person to be served at his or her last known residence or mailing them to his or her actual place of business. Important: The envelope used for the mailing must be marked “Personal and Confidential” and must not show in any way that the envelope contains papers about a legal action against the person being served.

    You should consult with an attorney. New York procedural law is complex; you do not want to jeopardize your case because of a procedural mistake.

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  • I am looking for an employment lawyer that can work on contingency to handle a matter for me.

    I was terminated from my job on June 11th. The termination was due to an e-mail that was sent from a 'fake source' (I believe it to be a fake source) that has slanderous and libelous statements. I am looking to see how we can acquire the person ...

    Jeffrey’s Answer

    You should use the AVVO find a lawyer function. Attorneys on AVVO are not permitted to solicit clients through this forum. This is further prohibited by state bar association ethics rules.

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  • Do I have to pay?

    My mother-in-law gave me her credit card to use over three years ago, I used it and pay on it every month, never late, now my finical situation has changed and I can't afford to make the payments. What happens? We no longer speak so I'm not going ...

    Jeffrey’s Answer

    You have received sufficient legal advice so I will take this opportunity to condemn your moral compass.
    For some unstated reason [perhaps bad credit on your part], another person kindly allowed you to use their credit card to make purchases which you probably could not have made otherwise. Based on your narrative, there appears to have been an understanding - stated or implied - that you would make payment for your purchases. Legal arguments aside, you made a moral obligation to the person who was kind and trusting enough to help you.
    You say that your financial situation has changed and that may be so. Now you would like to stop making payments for what you purchased and continue to enjoy the benefit of. However, if you do not pay then your mother-in-law will have to pay and her financial situation will immediately change. You owe it to your mother-in-law to discuss this with her and at minimum protect her credit from being harmed. Certainly there are areas in which you might be able to reduce spending and make nominal, if not full, payments on this debt.
    From a self interested perspective, you should consider the harm this will do to the relationship with your wife a.k.a. your mother-in-law's daughter.

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  • How hard is it to sue a friend who borrowed money and will not pay it back

    I have loaned a friend a large sum of money over 12 years and she has paid me back. nothing is in legal paperwork but emails and verbal agreements.

    Jeffrey’s Answer

    Mr. Warshaw is correct. The issue is one of statute of limitations not statute of frauds.
    Technically, the limitations period to sue for breach of contract is six years. However, the time to sue does not begin on the day you made the loan; it begins when the other party breached the agreement. For example, if the borrower has made periodic payments, the limitations period does not begin until after the payments stopped.
    If the amount is significant, you should retain an attorney to pursue this matter.

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  • I received an affirmation in opposition to my motion to vacate a default judgment. Do I file a response or just attend hearing

    I am being sued on a non disbursed student loan that I became aware of through judgement collection actions. A motion to vacate and RJI have been filed and served. The motion includes improper service and defenses based on inability to prove disbu...

    Jeffrey’s Answer

    You are not automatically entitled to submit a reply to your opponent's submission. This would depend upon how your original motion was served. This is governed by the New York Civil Practice Law and Rules ["NY CPLR"], specifically CPLR 2214.
    The CPLR sets forth deadlines for the service of papers on motions. There are three things to keep in mind. First, there are the basic deadlines set forth; therefore the moving party should choose a return date so that he or she will comply with those deadlines. Second, in most circumstances when papers are mailed rather than personally served, the rules add five additional days to the deadline for a response to allow for receipt of the papers. Third, the moving party may obtain additional time to prepare and serve a reply. That is, if the moving papers are served at a set time in advance and the notice of motion contains a demand in accordance with CPLR §2214(b)2, then the movant is allowed additional time to review the answering papers and may submit a reply in response to those papers. The following is a summary of the deadlines:

    Standard Time
    Moving papers - must be served by hand (personal service) at least 8 days before the return date or by mail 13 days (8 + 5) before the return date.
    Answering papers - must be served (by hand or mail) 2 days before the return date.
    Reply papers - not provided for.

    Additional Time - Papers in accordance with CPLR §2214(b)
    Moving papers - must be served by hand at least 12 days before the return date or by mail 17 days (12 + 5) before the return date and the notice of motion must contain the 2214(b) demand.
    Answer papers - must be served (by hand or mail) at least 7 days before the return date.
    Reply papers - must be served (by hand or mail) at least 1 day before the return date.

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  • Just received a "stipulation discontinuing action" from a collection agency. Can you tell me what it means? And should I sign

    And mail back as they ask ,they say it's then filed with court. And what happens next?

    Jeffrey’s Answer

    NY CPLR Article 32 governs this issue. Particularly CPLR 3217. Pay special attention to subsection [c] Effect of Discontinuance. If the discontinuance is without prejudice, the creditor may refile within the applicable statute of limitations. You should seek a discontinuance with prejudice.

    Rule 3217. Voluntary discontinuance. (a) Without an order. Any party
    asserting a claim may discontinue it without an order
    1. by serving upon all parties to the action a notice of
    discontinuance at any time before a responsive pleading is served or, if
    no responsive pleading is required, within twenty days after service of
    the pleading asserting the claim and filing the notice with proof of
    service with the clerk of the court; or
    2. by filing with the clerk of the court before the case has been
    submitted to the court or jury a stipulation in writing signed by the
    attorneys of record for all parties, provided that no party is an
    infant, incompetent person for whom a committee has been appointed or
    conservatee and no person not a party has an interest in the subject
    matter of the action;
    (c) Effect of discontinuance. Unless otherwise stated in the notice,
    stipulation or order of discontinuance, the discontinuance is without
    prejudice, except that a discontinuance by means of notice operates as
    an adjudication on the merits if the party has once before discontinued
    by any method an action based on or including the same cause of action
    in a court of any state or the United States.

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  • Default judgement without being notified. This happened in 2007 and was just recently informed. They're looking to garnish. HELP

    The debt it question was not mine and I was never able to defend myself in court because I was never served papers. Is it to late to file a motion to vacate/strike. Any help is much appreciated.

    Jeffrey’s Answer

    Based on the skeletal facts provided, it is likely not too late to make a motion to vacate the judgment. However, it may be better to file an Order To Show Cause why the creditor should not be restrained from garnishing your pay based on the fact that you are not obligated on the debt. In the same proceeding, you should seek a dismissal with prejudice.

    Depending on the amount of the judgment, you should consider hiring an attorney.

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  • Motion to renew or reargue standard

    If an attorney doesn't add all the necessary facts the client asked to be included in opposition papers to a motion and the motion gets granted, can the client fire the attorney and do a motion to renew/reargue in a civil matter and state that the...

    Jeffrey’s Answer

    Here is the applicable procedural rule.

    NY CPLR § 2221 : Motion affecting prior order -
    (a) A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that: 1. if the order was made upon a default such motion may be made, on notice, to any judge of the court; and 2. if the order was made without notice such motion may be made, without notice, to the judge who signed it, or, on notice, to any other judge of the court. (b) Rules of the chief administrator of the courts. The chief administrator may by rule exclude motions within a department, district or county from the operation of subdivision (a) of this rule. (c) A motion made to other than a proper judge under this rule shall be transferred to the proper judge. (d) A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals. (e) A motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion. (f) A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.

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  • Can I get them to stop

    A couple of years ago, I checked my credit report to find a judgment against me. I went to court to fight it cause this company NEVER notified me. I end up getting the judgment vacated because this company served me at some fake address they must ...

    Jeffrey’s Answer

    You need to consult with an attorney who is experienced in debt collection defense and litigation. Be sure to collect ALL paperwork associated with the debt and the various attempts to collect it. There are too many issues with your case to fully answer here. For example, if the first judgment was vacated with prejudice, the debt collector cannot seek another judgment or attempt to collect the debt. Similarly, if the statute of limitations passed before the second judgment was obtained, then the debt collector cannot sue you. Additionally, any or all of these bad acts by the debt collector constitute a violation of the Fair Debt Collection Practices Act .

    The Fair Debt Collection Practices Act ["FDCPA"], 15 U.S.C. §§ 1692-1692o, regulates the conduct of third-party debt collectors including debt collection law firms. The FDCPA defines and restricts abusive debt collection practices and provides specific rights for consumers. Among the acts prohibited by the FDCPA are: invasion of privacy, harassment, abuse, false or deceptive representations, and unfair or unconscionable collection methods. It is considered a deceptive practice for a debt collector to imply or threaten action that is illegal. For example, it is false and deceptive to sue a debtor beyond the time permitted by the applicable statute of limitations.
    You should know that the FDCPA provides for a successful plaintiff to recover statutory damages of up to $1000.00 as well as attorney's fees, costs, actual damages, and in some instances punitive damages.

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  • Vacate motion - evidence

    If a litigant didn't submit proofs to support their opposition paper to a motion to vacate default judgment, can they submit it during oral hearings? Or proofs aren't required if the submitted affirmation in opposition is notarized?

    Jeffrey’s Answer

    Just because there exists a mechanism for self-representation [pro se] does not mean that one should be self represented. Motion practice is complex, arcane, and difficult for a non litigating attorney let alone a lay person.

    You should seek representation.

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