While not required, it is often advisable to consult with an attorney in connection with a proposed notice of claim. An attorney can assist in identifying potentially liable parties, in determining whether claims against any of those parties are subject to notice of claim requirements, in drafting a legally sufficient notice which includes all required information, and in ensuring that the notice is properly and timely delivered or mailed to the correct individual.
Filing a Notice of Claim. Written by Christopher P. Langlois Share: Twitter Facebook. You have a couple of options. You can file your claim in the court that satisfies any of the following criteria:. If you are unsure of which court office handles cases in the area where you want to file your claim you can call the court office where you think you should file the claim and ask the clerk.
You could file the claim in Barrie where the problem occurred or in Whitby where the defendant carries on business.
Generally, you are not required to file the affidavit for jurisdiction with the court until you are ready to proceed with certain steps, such as asking for the defendant to be noted in default. However, if you are not certain that you are filing in the correct jurisdiction, you may wish to prepare an affidavit for jurisdiction to bring in with your claim and ask the clerk to review it.
This may help to avoid delays and additional costs if you are later unable to prove the claim has been brought in the proper jurisdiction.
In that case, you may not be entitled to proceed in the court where you filed your claim. Look back at our roofing company example. Your leaky roof is in Barrie and the roofing company is in Whitby. You choose to file the claim in Barrie where the problem occurred. You serve your claim on the defendant at its place of business in Whitby and indicate this in your affidavit of service. One Affidavit of Service [Form 8A] is required for each person served.
Set out who was served and how service was made. Generally, you are not required to file the affidavit of service with the court until you are ready to proceed with certain steps, such as making a written request to the clerk to note the defendant in default. A claim should be served on each defendant within six months after the date it is issued. This will help you avoid your claim being dismissed for delay by the clerk two 2 years after it was filed.
If necessary, you can ask the court to make an order extending the time for service before or after the two 2 year period has elapsed, and extend the time before the clerk can dismiss the action. There is a fee for this process. In your affidavit, explain why you need more time to serve the claim. If you wish to amend an e-filed claim after service on the defendant, you may amend your claim through the Small Claims Court Submissions Online portal or at the court office.
You can access both online portals at www. A plaintiff may amend a claim without paying a fee and without obtaining an order from the court to amend, as long as:. You must file with the clerk a copy that is marked "AMENDED" with any additions underlined and any other changes identified on the amended claim.
The defendant may dispute all or a portion of the claim in his or her Defence [Form 9A]. The defendant must serve and file the defence with the court within 20 days of being served with the claim. After the day period has passed, the court office will accept a defence for filing if the defendant has not been noted in default. If the defendant fails to file a defence with the court and at least 20 days have passed since you served the claim, you can fill out and file a Request to Clerk [Form 9B] asking the clerk to note the defendant in default.
You must also file a completed Affidavit of Service [Form 8A] for each defendant to show the court that the defendant was served with the claim properly. The Rules provide that a defendant who has been noted in default cannot file a defence or take any other step in the proceeding, except making a motion to set aside the noting of default, without leave of the court or the plaintiff's consent.
A defendant who has been noted in default is not entitled to notice of any step in the proceeding and need not be served with any other document except those required by the Rules , such as: default judgment, amendment of a claim or defence, motion after judgment, and post-judgment proceedings against a debtor.
In some circumstances, a defendant may ask a judge for an order setting aside the noting in default. The plaintiff and defendant may also agree to a clerk's order setting aside the noting in default. In some circumstances following service of your claim, you may reach an agreement with the defendant to settle the action outside of court, or you may simply decide not to proceed with your claim. Where you no longer wish to proceed with your claim and the defendant does not file a defence, you may serve a Notice of Discontinued Claim [Form For more information on service refer to the "Guide to Serving Documents.
The claim may not be discontinued by or against a person under a legal disability e. The court will send a Notice of Settlement Conference to all parties unless the defence contains a proposal for terms of payment for the full amount claimed.
The settlement conference should take place within 90 days after the first defence is filed. A defendant who is served with an amended claim is not required to file an amended defence. However, the defendant may choose to file and serve an amended defence to respond to any new allegations made in the claim. The defendant may file a Defence [Form 9A] which admits part, or all, of the claim and makes a proposal for terms of payment.
If the defendant admits all of the claim and his or her proposal is acceptable to you, you are not required to take any further steps in the case. The defendant is required to make payments directly to you in accordance with the proposal. If the defendant admits only part of the claim and you are satisfied with his or her proposal for terms of payment, you will need to go to a settlement conference, and possibly trial, only for the part of the claim that was not admitted.
Within 20 days of service of the defence, fill out and file with the court a Request to Clerk [Form 9B]. You must also serve a copy of the request form on the defendant. If you filed your claim online, you may also need to file hardcopies of all filed and e-issued documents with the court at the same time you request your terms of payment hearing.
The court will send both parties a Notice of Terms of Payment Hearing setting out the date, time and place for the hearing. The court will also send the defendant a blank Financial Information Form [Form 20I] , if the defendant is an individual and not a business. The defendant must fill out the financial information form and serve it on you before the hearing.
Note: The financial information form cannot be filed with the court. At the hearing the court may make an order that could differ from the defendant's proposal.
If the defendant does not appear at the hearing, the plaintiff may obtain judgment for the part of the claim that the defendant admitted to owing. If the defendant fails to make payment in accordance with the proposal made in the defence, you can serve a Notice of Default of Payment [Form 20L] on the defendant. If the defendant does not make arrangements to pay you within 15 days of being served with the notice, you can fill out and file with the court an Affidavit of Default of Payment [Form 20M] along with a copy of the notice of default of payment.
The clerk will sign judgment for the unpaid balance of the amount of the claim that the defendant had admitted to owing. You only have to prove the amount of the claim the amount of money that the defendant should pay.
If the clerk is satisfied with the contents of the default judgment and any supporting documents, the clerk will sign the default judgment for the amount of the claim and interest if you claimed interest.
The clerk will serve copies of the default judgment on all parties. This type of claim will require an assessment of damages by a judge. To request this order, you can either file a motion in writing for an assessment of damages, or request an assessment hearing before a judge.
If you prefer to file your request in person or by mail, you can request an assessment hearing before a judge by filing a Request to Clerk [Form 9B].
The clerk will send a notice of hearing to the plaintiff only indicating the date, time and location of the hearing. You must prove the amount that the defendant should pay to compensate you. In order to obtain an order on a motion in writing for an assessment of damages or at an assessment hearing, all defendants must have been noted in default. The clerk cannot note a defendant in default if the defendant has not been served.
In some circumstances, a defendant may ask a judge for an order setting aside the noting in default or the default judgment that the plaintiff may have obtained. The plaintiff and defendant may also agree to a clerk's order setting aside the noting in default or default judgment.
If the noting in default or default judgment is set aside and the defendant files a defence, the case will proceed to a settlement conference and, if necessary, a trial. If you do not take the necessary steps to get final judgment within the time period set out in the Rules , the clerk of the court will make an order dismissing your case for delay. Unless ordered otherwise, the clerk will dismiss your case if the following conditions are satisfied:. If you are served with an order dismissing your claim for delay and you want to ask the court to set aside the order, you can make a motion before a judge.
After you have filled out your claim form, the next step is to file the claim and supporting documents, and one copy of each, with the Small Claims Court office where the original action was filed.
The copy will be stamped and returned to you. It is possible to mail your claim and supporting documents, and one copy of everything, together with the fee to the Small Claims Court. However, if you can, you should take your documents in personally. This way, you will avoid wasting time mailing the documents back and forth with the court.
The Rules provide that the defendant's claim shall be tried and determined at the trial of the action, unless the court orders otherwise. If a party against whom the defendant's claim is made has been noted in default, the Rules provide the judgment may be obtained against the party only at trial or on motion.
Prepare your claim carefully. It will make it easier for all parties to understand who is making the claim and exactly what is being claimed. When calculating timelines in the Rules , count the days by excluding the first day and including the last day of the period; if the last day of the period of time falls on a holiday, the period ends on the next day that is not a holiday.
The court can order, or the parties can consent to, the shortening or lengthening of the time prescribed by the Rules. Holidays include:. You should come to the commissioner with identification and the unsigned document. A Notice of Claim must include:.
Show All Answers. If you have a complaint against the City, or wish to seek reimbursement from the City, you need to serve a Notice of Claim with the City. Even if it is determined that liability exists on the part of the City of Albany, the Law Department must still seek approval from the Board of Estimate and Apportionment before a claimant may be reimbursed. A notice of claim must be served within the 90 day statutory period by delivering a copy personally, or by registered or certified mail to: Corporation Counsel 24 Eagle Street Room Albany, NY After the filing of a Notice of Claim, the City of Albany conducts an investigation into the facts alleged in the Notice of Claim.
Once an investigation is completed, an attorney is assigned to assess the legal liability of the City. The City of Albany usually takes 6 to 8 weeks to fully investigate the facts and circumstances surrounding a Notice of Claim.
In the event that it is determined that there is no liability on the part of the City of Albany, the individual who filed the Notice of Claim will be notified via mail. If, after a full investigation, it is determined that the City of Albany is liable for the loss set forth in the Notice of Claim, a letter will be mailed indicating this fact, and a settlement proposal will be made. After such settlement proposal is made, and is accepted by the claimant, the settlement is submitted to the Board of Estimate and Apportionment to approve such agreement.
Skip to Main Content.
0コメント