I have been sued in NY Supreme Court, Erie County. I have served my Answer on Plaintiff's attorney and included my affirmative defense of Lack of Personal Jurisdiction. How long do I now have to bring a motion and file it in court? Thanks.
I have a business line of credit, and I missed some payments so now they are suing me and my corporation (I am a doctor) for 40k and I gave them a personal guarantee. I live in California and have no contacts with New York and neither does my corporation, that's why i served my answer, and the affirmative defense of "lack of personal jurisdiction." I hope to settle this, but would really like to get it dismissed if possible and gain some leverage in settlement amount since it's hard for me to pay this off. Thank you.
The NY Court in which your responsive pleading, or Answer, was filed has its own unique statutes and Rules which governs motion and trial practice. In general, most states provide for the content and timing required for Motions to be filed and served by the party named in a Complaint has been filed in Court.
The specific answers to your questions, which will be determined by the NY statutes and Rules which governing motion and trial practice in the Court in which the Complaint was filed against you, can only be obtained via your personal consultation with an attorney licensed to practice in NY who knows the applicable NY statutes and Rules which are above described for you. You should be prepared to take with you all of the papers related to the Court action in which the the Complaint was filed against you, together with all documentation related to the claims there at issue.
You should also be prepared to pay a fee for the attorney's consultation, review and advice. The amount of that fee, and the terms for the payment of same, should be agreed upon between you and your attorney before starting the consultation.
The response given here is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Ohio. Responses are based solely on Ohio law unless stated otherwise.
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The answer to your question depends, in part, on the basis of the motion, the claims for which the lawsuit was instituted, the damages claimed, the merits of your defenses, and your willingness, at this juncture, to appear and argue in person your motion.
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Please take a look at CPLR 3211 - link included:
Also take a look at CPLR 2212
CPLR 2214 -http://law.justia.com/newyork/codes/civil-practice-law-rules/cvp0r2214_r2214.html
I am assuming that you are proceeding pro se in this matter. I personally would not have answered the lawsuit if there was an issue of lack of personal jurisdiction over you. I would have instead filed my motion to dismiss under CPLR 3211 which would have tolled the time frame for answering the complaint. By answering the complaint, you run the risk of opposing counsel arguing that you waived your argument about the Court's personal jurisdiction.
That being said, I am assuming that you are from out of state/country and don't have any regular or continuing contacts with the forum you are in if you are claim lack of personal jurisdiction. If you are from out of the country, then you get into the area of U.S. Treaties and what they provide for service of process on a foreign national in a particular country.
Or is it that you are really contesting venue, if you are a New York resident, the court may very well have personal jurisdioction over you, but the forum may not be convenient to try the case. I don't know because you didn't provide that information.
In any event, I suggest you speak with an attorney who can advise you on your next move before you start getting involved in motion practice. The NY CPLR is frraught with intracacies for the inexperienced. There are a number of procedural requirements that you must do when filing a motion.
One other point I would like to make. Many times in line of credit agreements there are "choice of forum" clauses which in effect say that you agree to be sued in a particular venue, i.e. Erie County, NY. I would take a look and see if there is any such clause. That may very well be determinative of the issue.