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James K. Lyder

James Lyder’s Answers

195 total


  • What is the probability of the judge denying defendants counterclaim amendment? What is the statue of limitation of such?

    Defendants requested a pre-motion conference in anticipation of filing a motion to amend its answer in order to assert counterclaims against plaintiff. Doesn't the FRCP Rule 13 apply to such? This is a debt collection case in which defendants ...

    James’s Answer

    Whether or not an amendment to the pleading will be allowed will depend upon the extent to which the opposing party will be prejudiced. That is the standard. If discovery is complete, then your side should argue that permitting the amendment would require discovery to be repeated thereby wasting judicial resources. Also, you can defeat the amendment if you can show the defendant possessed the information necessary to make the amendments earlier but sat an his hands. If, however, the defendant can show the amendments are based on new information which surfaced during discovery and no one will be prejudiced by adding them now, it will be granted, subject to the Court's general reluctance to extend its discovery order. Your attorney should know all this by rote. If he/she does not, get another attorney.

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  • What is a " notice of pendency of action"? I have one filed against me in a property that I have not paid the mortgage .

    What should I D if I do not plan to stay in this property if it goes to foreclosure?

    James’s Answer

    It means a lawsuit has been filed against you that affects title to your property. Since you have not been paying your mortgage, it probably means a foreclosure lawsuit has been filed against you by the bank. You may have not been served with the lawsuit papers yet. There are many lawyers who specialize in foreclosure and I suggest you contact one in your area right away to discuss your options.

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  • How to get paid with mechanics lien?

    The home owner who is building new construction houses in Holmes, NY owe us substantial amount for the building material that she purchased, and now refused to pay. Thinking of filing mechanics lien, but doesn't seen to effect on the ability of ac...

    James’s Answer

    You should definitely file a mechanic's lien. It will not stop a CO from being issued but it will inhibit the sale or financing of the property, which puts you in a very strong position. In addition, even if the property is not sold or financed in the near future, you can start a lawsuit to foreclose on the mechanic's lien. The time limit for filing a mechanic's lien on a private residential project in NY is four months. I am a few towns away from you. Feel free to contact me to help you with all this.

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  • NYS Corp. is general partner in a limited partnership- The LP owns property - Corp is inactive can I sue to pursue my interest

    Its seems that the limited partner does not want to respect my interest because the corporation is inactive in NYS and I feel I will have to sue -How can I sue being inactive

    James’s Answer

    I think you saying you are the inactive corporation and you want to assert you rights against the limited partnership. If that is correct, you have to get your corporation back into good standing and sue the LP.

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  • My wages were reduced by 40%. Constructive discharge?

    This notice was given to me in the midst of a commission dispute with my employer. It feels like retaliation and constructive discharge. Thoughts?

    James’s Answer

    • Selected as best answer

    You employer can downgrade your commission plan at any time if you are an at will employee and it was for a non-discriminatory reason. You have not provided information sufficient to determine if there was retaliation or constructive discharge. You need a consultation with an employment attorney.

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  • I was hired by a consierge company to cater an event. They contracted for 130 guests @ $95 pp plus gratuity and added expenses.

    The June 29 event went very well except that of the 300 invited guests, 175 attended plus 20 staff and the band of 8 musicians. (My staff and I counted them) They claim there were 143. There was obviously not enough food and beverages for all of...

    James’s Answer

    I assume you have a written contract. Take it to a contract litigation attorney and review your options. Generally, you can't sue the host if she was not a party to the contract. There are some legal theories that might allow such a claim (third-party beneficiary, quantum meruit) but you should discuss this all with a good lawyer. If you did not have a written contract here you need to make sure you have one in the future. I handle contract litigation in your industry and to provide this type of service without a contract outlining the rights and obligations of the parties puts you at a distinct advantage and creates tremendous liability exposure.

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  • My 1099 independent contract was terminated 2 months ago. the company is not paying me $1500 in commissions i earned what i do?

    i was an insurance agent, my contract was terminated because a client made a complain that accused me of creating a ficticious investment. the client withdraw from the complain but the company decided to terminate me. the day of the termination t...

    James’s Answer

    Sue them immediately.

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  • Retainer replenishment

    After retaining an attorney for the first time by paying retainer fees. According to the agreement made between me and my attorney I am supposed to pay him after he bills me. What is a retainer replenishment? Why should I pay this after a long du...

    James’s Answer

    A replenishing of retainer clause is common is engagement letters. If you think it's unwarranted due to your long relationship with your lawyer, and presumably a good payment record, then speak to your lawyer about the issue. More than likely, he/she would be open to a revision rather than lose you as a client.

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  • Is a guarantor responsible for any damages or accidents that may occur in leased apt. to a sublease?

    Am I only responsible for the rent, or for the rent plus any damages in the apt., and what if the sublease falls in the apt? Beside the rent, can I be sued for anything?

    James’s Answer

    It depends upon whether your guarantee was one of payment, performance or something broader. The guarantee must be in writing to be enforceable. So what does it say?

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  • Can my contractor bring an account stated claim against me even though part of the contract is usurious? Is 15 days time

    reasonable to make an objection? I have been making partial payments to my contractor thinking that he will bill reasonably fair. However, the last invoice was extremely high and unexpected. He gave me 7 days time to pay him and said that since I ...

    James’s Answer

    First of all, there is really no difference in him bringing you to court for an account stated or breach of contract. And he has to sue you and win and file a judgment for any of this to matter, which will take months if not years. So there is no immediate threat. Usury laws don't apply in your situation and 1.5% a month is not likely to be considered usurious anyway.

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