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David J. Abeshouse
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David Abeshouse’s Answers

26 total

  • Can you be forced to make an on the spot decision regarding a mediation offer?

    After 3 hours of mediation on a Friday afternoon, an offer came from the other side and I asked if I could have the week-end to consider it before agreeing and I was told by my attorney that I had to make a decision right then. This was a first me...

    David’s Answer

    In addition to what the other two responding attorneys have said:
    Note that most mediations are "voluntary" and non-binding, so that while you may have to make an immediate decision as to whether or not to accept an offer (for example, if the other side is insistent that this is their "final" offer), you cannot be "forced" to accept it. Please note that I practice in NY. As they say, "Your Mileage May Vary." Best of luck.

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  • Can an arbitrator amend an award based on discussion with one of the parties without reopening the hearing?

    I received a Binding Arbitration Award last week. Yesterday I received a letter from the arbitrator amending the award verbiage to remove one of the defendants from the action. This defendant is a party to the original contract. The letter stat...

    David’s Answer

    I'd need more information to provide a specific answer, but as a general proposition, arbitrators are not supposed to have ex parte (private) conversations with one side (outside the presence of the other side). Depending on the particular arbitration forum (or court) in which this occurred, the rules might permit amendments of an award, but that'd likely be in very narrowly defined circumstances and for limited purposes. You might want to look into the possibility of seeking to vacate (overturn) the arbitrator's award, assuming that what you refer to as the "letter" actually was (or was made a part of) the final amended award. There could be a couple of grounds for doing so based on the information you've provided, but it'd be best to have local counsel look at the matter more in detail.

    Please note that I am not licensed to practice law in your state, and I practice only in NY. This response is provided for educational purposes only, and no attorney-client relationship has been formed. As they say, "Your Mileage May Vary." Best of luck.

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  • Business dispute on opposite coasts: Should I handle it pro se?

    I live on the east coast and my dispute is with a person in California. He has $30,000 of mine and has not lived up to our agreement. I have received nothing in return at this point. The amount involved seems to make hiring an attorney completely ...

    David’s Answer

    I agree with and endorse Susan Pernick's expanation and conclusion, and simply want to emphasize the futility of trying to handle this matter pro se. You'd probably be better off focusing your attention on other money-generating ventures than pursuing this on your own. Get a collection lawyer to handle it for you, either in NY or CA, as appropriate, depending on the facts. They'll likely charge you a contingent fee of between 25 and 33%, payable only on the sums they actually recover for you. In my opinion, the decision is a "no-brainer." And if you knew about litigation what litigators know about it, you'd likely agree with Susan (who I don't know) and me. Please note that I practice in NY (but don't do collection work). As they say, "Your Mileage May Vary." Best of luck.

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  • Is legal action is called for here and what catagory would apply?. Business/criminal/fraud/lawsuits/disputes/employment/labor

    A legally licensed business operated by a non-profit organization, run by volunteer members for the non-profit organization, was closed by the volunteers without the knowledge or consent of the ruling body of the organization. The business was cl...

    David’s Answer

    One thing to consider and investigate is whether there was any insurance coverage at this organization. If so, there may be a fund available for recovery of money damages. While that won't restore the venture itself, it might provide seed money for a new start-up, revamped to avoid the problems experienced in the past. Please note that I practice in NY. As they say, "Your Mileage May Vary." Best of luck.

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  • If I'm being sued solely as a dba, and I close my company. Would that end my lawsuit?

    If I close my company, and I'm being sued strictly as a dba, will that end the lawsuit and/or would/could the plaintiff re-file another mirror lawsuit?

    David’s Answer

    It's not likely that closing your company would end the matter, unless the plaintiff isn't persistent and simply loses interest. It sounds from your question that the plaintiff is suing you only in the name of your company. However, it's not clear from your question what form your company is in -- it sounds like it's likely a sole proprietorship (as contrasted with, for example, a corporation or LLC). Assuming it's a sole proprietorship, closing your company likely would have little effect on the lawsuit, as it could be amended or (as you suggest) re-filed to name you individually; the dba company name is really identical with you, and your assets stand behind it, as a practical and legal matter. But what if your company is a corporation or LLC wholly or mostly owned by you? In many respects a corporation or LLC does afford protection against personal liability for business debts. But legally, at least in the state where I practice, if you close a company and transfer any corporate or LLC assets (e.g., computers, furniture, inventory, cash, etc.) to an individual without paying the company for them, you're subject to a legal action based on "fraudulent conveyance" under the NY Debtor and Creditor Law. A lot depends on the specifics of your situation, but as a general rule, you stand a good chance of being at least partially on the hook, potentially. Please note that I practice in NY. As they say, "Your Mileage May Vary." Best of luck.

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  • Arbitration through the National Arbitration Forum

    A debt collector wants to arbitrate with me through the National Arbitration Forum. I tried to settle this debt with them by sending a letter to them in December 2008 demanding they show proof they own the debt. Would their refusal of prov...

    David’s Answer

    As a general proposition, if a debt collector has commenced an arbitration proceeding through the NAF, your failure to respond substantively and timely, no matter how justified you believe your position may be, is quite likely to result in issuance of an Award against you and in favor of the debt collector, not only for the principal amount allegedly due, but also for associated interest, fees, and other money damages that can substantially increase the amount for which you may be held liable. In other words, and I'm sorry to be the bearer of bad news, but you ignore an NAF arbitration proceeding at your own peril. Please note that such an award, once issued, can be extremely difficult to vacate or appeal. Bottom line: If you receive a claim filed against you before the NAF or similar arbitral forum, either engage counsel to assist you, or become very familiar with the forum's rules (available online), and follow all procedures and deadlines to defend your case. If you don't respond to it, the Arbitrator won't know why, and it's more likely than not that you'll lose. (The supposed trickery to which you refer is immaterial -- please don't distract yourself with non-issues that only might hurt, not help, you.) Please note that I practice in NY. As they say, "Your Mileage May Vary." Best of luck.

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