Our Legal System
| Instead of going to legal route, I suggest that you start by filing a complaint with your State Attorney General. One drawback that I found is that, in NY at least, the Attorney General won't take any real action unless they have a string of complaints. Also, the Attorney General cannot provide individual legal advice; or intervene if the dispute is, or has been, in litigation; and must defer to court proceedings and determinations. In other words, once a person files a suit in the court system, Attorney Generals won't touch it. So try your Attorney General, and all of the memberships, etc. that you can think of first. See if you can get any results, before you consider the courts, unless there is a time limitation in which you are able to sue, and you are in danger of running out of time. See If You Need Help for ideas and contact information. |
While I was searching for answers, I learned a few things. One lawyer told me that justice and our legal system are distant cousins, and rarely do the two meet. From what I've seen, this is so very, very true. Another lawyer told me, justices are not required to have been lawyers. A third lawyer told me that small claims court is supposed to be the easiest way, but small town and village judges may not know the laws.
Come to find out, New York's 1,250 town and village courts are rife with judges, lacking sufficient training, who may deny people basic legal protections. The system has been criticized for decades as outmoded, poorly supervised, and unfair. Three-quarters of the justices in these small-town courts are not lawyers. Many have only high school diplomas or less; and they receive very little legal training, only 6 days initially, from the state. These justice courts are not required to keep a transcript or tape recording of court proceedings, like other courts in state (as of Sept. 25, 2006). So, across this great nation of ours, officials who don't know the laws are deciding people's lives; and there's no proof of what occurred during someone's court appearance! There's something wrong with this picture.
Plus, you have to find a judge who is not sympathetic to, or paid off by the contractors. What ! You're telling me that judges are routinely paid off ? It's the only explanation that I can conceive, for what goes on every day.
A friend of mine had her roof done. The roof leaked, and it cost her more than $5000 to repair the damage. She filed in small claims court to regain her losses. This is where it gets unbelievable. She first went before a mediator who was rude to her, and hardly glanced at her evidence (pictures). He awarded her $1700 of the $5000 in damages that she sought. This lady felt she was treated unfairly so she filed for a Trial de Novo. The story gets even more unbelievable. She went before a judge. This "judge" started the session with "I don't want to hear any testimony; I don't want to see any evidence; go out into the hall and resolve this between yourselves. This lady was shell-shocked! She believed that she was entitled to her day in court. After all, it says she was in our US Constitution.
Her inspector, who was with her, took over the negotiations. He negotiated that the roofer should come back and make repairs. He believed, from his experience, this was all she could hope for.
So this is what it boils down to New York State. After all of the strife, animosity, mental anguish, and expensive repairs, the homeowner's only recourse is to allow the contractor to come back, and fix what they should have done right in the first place - but then it is a repaired job - probably not up to the standards of a new job, especially with a roof, which will now have empty nail holes in the decking. This is so wrong!
To make matters even worse, the chances of getting a second judge to overturn the decision of a previous 'judge' are almost infinitesimal.
So if you think you can easily appeal, don't believe it. You have to prove that substantial justice wasn't done, and any judge's decision is protected with a standard and a precedence. "The standard of review on appeal is whether substantial justice was performed between the parties according to the rules and principals of substantive law (UJCA §1807). In the case of Coppola v. Kandey Co., 236 AD2d 871, the Fourth Department held that "judgment rendered in a small claims action will be overturned only if it is "so shocking as to not be substantial justice" (citing Blair v. Five Points Shopping Plaza, 51 AD2d 167). Well, it's shocking to me that any contractor should get paid one penny for a staircase that would likely collapse within a few months. It's no wonder that "justice" has such a hard time finding its way into our legal system. Oh, and you can't present any additional evidence at the appeal.
At the very least, take someone involved in the case with you to witness court proceedings. {I don't believe that you can use a tape recorder in court.} It is better to take an expert witness. It is best (if you can) to take a lawyer. Your opponent may shock you; and not only show up, but show up with a lawyer. Contractors, especially the most conniving, are accustomed to this game; and know all the tricks.
My opponent was not sworn in, I proved that he lied in court, the stairs were condemned; and I still couldn't get the County Judge to overturn the previous decision. He did chastise the village judge, but that didn't put any more money in my pocket. There is a generally accepted policy that the contractor has a chance to make repairs. My opponent's lawyer stated something akin to "pursuant Right-to-Cures laws, my client should be allowed to return and make repairs." He failed to mention that those laws were in other states, not New York. My small-town judge took this lawyer's words as gospel; he didn't know any better.
There are laws that protect you when you go to legal route, if you're lucky enough to get a judge who knows them. Anyhow, I am providing a link to excerpts from secondary sources. I found these summations / explanations of laws, sometimes called seconds in the Appellate Division Law Library located at: 50 East Ave., Suite 100, Rochester, NY 14604-2214. However, I was told to reference the actual court cases if I am ever involved in a legal case. Click here for a review of some laws; these are excerpts / summaries of the cases involved. Laws That Protect You
New York State says they want to keep people here; but I say that if they want to keep people here, they have to do something to protect the consumer, the tax-paying citizens of New York. I will tell you this; the next home I buy will not be in New York State. It will be in one of the 36 states that require contractors to be licensed or registered, and the laws give me the protection of being fairly treated.
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| I suggest that everyone enroll in a pre-paid legal service before doing any construction project. It's usually only a monthly fee of less than $20. One question answered by your service can save you thousands of dollars. |
"The Small Claims Court is an informal court where individuals can sue for money only, up to $3,000 in Town or Village Courts, and $5,000 in City Courts, without a lawyer. If you have a claim for damages of more than $3,000 / 5,000 you cannot separate it into two or more claims to meet the $3,000 / 5,000 limit."
The burden of proof {the necessity of one party to prove his case} lies with whoever starts the suit (plaintiff). This person must not only prove that he or she is entitled to win the case, but must also prove the amount of damages. - If the defendant in the case files a counterclaim he / she also has a burden of proof to prove his case.
In order for you, the plaintiff, to prove your damages you should either present evidence, have testimony as to the damages claimed, or both. You must prove your case by the weight of evidence presented {more convincing evidence in favor of your argument than is offered against your argument}.
Find all witnesses who can testify for you, and bring them with you to court on the date specified. If you are unable to get a witness to appear voluntarily, just ask the clerk of the court to issue a 'subpoena'. A subpoena is a legal document that commands the person named in the subpoena to appear in court. An expert witness may not be compelled to testify by subpoena. You cannot pay a witness for his or her testimony, but you are able to pay a reasonable fee for a witness's time. This rule is to ensure that you are not buying a favorable testimony.
Before you appear in court, you should gather all the evidence necessary to prove your claim (or your defense). You must then bring all that evidence, with you to the courtroom if you wish for the judge to consider it in making his decision. The judge will not consider any evidence you forgot to bring. Bring any written agreements, any paid invoices or itemized bills, cancelled checks, photographs, correspondence, or other documents that concern your case. Also bring at least two different written itemized estimates for the cost of repairs. If feasible, merchandise that is in dispute should be brought to court.
If there is a witness who has told you something that is helpful to your claim, you cannot tell the judge what the witness said; the witness must be present to speak for himself.
Your conduct in the courtroom needs to be exemplary. You should direct all questions and statements to the judge; do not talk to the other party. The judge will ask for the evidence and the witnesses when he is ready; do not present them until the judge asks for them. Do not interrupt the judge. Avoid saying or doing anything to anger or irritate the judge, or the other party. Remember, the judge is the one who makes the decision, so you should avoid causing any problems or conflicts that could sway opinion away from your side. Show up prepared to present your side. The purpose of the small claims court is to provide an inexpensive and speedy method of hearing your claim. Showing up prepared helps the judge make a decision.
Don't assume (like I did) that your contractor would be ashamed to show up in court. He or she is more likely to show up with experienced legal council (in all probability, on retainer). Be prepared, mentally, to be "grilled" by this lawyer. That's one mistake I made, and my anger at his insolence was obvious.
Other disadvantages to filing suit:
You may file your case at a court most convenient to you as long as it is in the jurisdiction (town or village) where the party being sued (defendant) lives, works, or has a place of business.
In New York, you need to acquire two booklets before or as soon as you file a claim against your contractor:
Each booklet has some information. With both booklets in hand, you will be better prepared. As of January 1, 2004, the jurisdictional limit in almost all of New York's small claims courts has been raised from $3,000 to $5,000. At this time Justice Courts, which operate mainly in rural areas, are still stuck at $3000. The hope is that the town and village justice courts will also be raised to $5,000 soon. Check with the jurisdiction where your claim will be filed to learn their limit.
If you ever end up in appellate court, be sure to get the booklet, RULES OF THE APPELLATE DIVISION, or the like from your local appellate court.
You may find some documents online:
Some larger town and village courts and some city courts use the services of volunteer mediators and arbitrators to assist parties in resolving their cases. Check with the court clerk regarding the availability of arbitrators or mediators for your case.
Important Warning: Do not go before an arbitrator that your contractor suggests or insists on using.
You may choose to mediate your case before going to trial. There is no charge for mediation through the court system except perhaps, a small filing fee. Mediation is an opportunity for both parties of a dispute to work together on possible solutions with the help of a professionally trained mediator. You will have ample time to discuss all of the issues important to you. It is a non-binding dispute resolution process where all discussions are confidential by law.
If an agreement is reached, it may be written with the help of the mediator; and signed by both parties. Written agreements will be binding; and almost certainly, enforceable in a court of law. If you do not reach a mutually agreeable solution, you may continue your case in the court system. Mediators in New York are trained under NYS Unified Court System standards. You can locate your nearest community dispute resolution center by checking your telephone book under 'mediation' or 'dispute resolution', or by asking the court clerk.
You may also wish to look into the Better Business Bureau's resolution processes, especially if the restitution you are seeking is too large for small claims court, and you'd otherwise be facing an expensive, protracted civil suit. The BBB offers several ways to resolve disputes using alternative dispute resolution (ADR) - it's user-friendly, inexpensive, and helps resolve thousands of complaints each year. "The Better Business Bureau system makes the results of its various dispute resolution programs publicly available in the belief that such transparency helps consumers and businesses assess the value of the BBB's services."
You can go to BBB's webpage, BBB - Dispute Resolution, for a deeper discussion of the following topics.
In some jurisdictions you may be able to choose to present your case before an impartial arbitrator or a judge. If you choose arbitration, your case may be heard sooner. Arbitration is more formal than mediation, and should give both parties the opportunity to present evidence in a joint hearing. Many arbitrators are experienced lawyers who serve without pay. At least with an experienced lawyer as your arbitrator, you can be assured that he or she will know general contract laws. However, it is difficult to find any lawyer who is experienced in construction-defect lawsuits. For a lawyer to understand construction usually takes special dedication or study. The two occupations are just so dissimilar; legal expertise and construction expertise can't usually cohabit in the same mind.
Usually, decisions are final in arbitration; and there is no further appeal by either the claimant or the defendant. My friend (above) was able to file a "Trial de Novo" because she felt she was unfairly treated. {See Grounds to Vacate (Nullify) Arbitration Award} Check with the jurisdiction where you need to file your claim as to what their restrictions, capabilities, and policies are. Then bash your head against the wall trying to decide mediator, arbitrator, or judge. Who will treat you the fairest?
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| Remember, your contractor is likely to show up to even a small claims hearing with his or her lawyer. Suppose that your contractor did not fulfill the contract substantially. (See Laws That Protect You for a more in-depth definition.) Stick to your guns; the issue is that he breached the contract, and you do not need to allow him to effect repairs (unless you have a Right-to-Cure type law in your state). On the other hand, remember that if you have fired a contractor who has essentially done the work as agreed, you are the one who will be found to have breached the contract. Make every effort then, when drawing up a contract, to be explicit about what work the builder or contractor is to perform. |
