Posts made in January 2018

SERVICE OF PROCESS IN NEW YORK

What is service of process? 

Service of process is the procedure by which a party to a lawsuit gives notice of initial legal action to another party, court or administrative body in a effort to exercise jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal. 

In laymen terms: service of process is the delivery of documents to a individual, business/organization.  For notification purposes, allowing that individual, business/organization to respond.  The term service of process is also called process service and/or serving process either term does not change the definition.

There are many rules and laws that govern service of process depending on the jurisdiction/state in which service takes place.  Within New York more particularly the five boroughs (Brooklyn, Queens, Bronx, Manhattan, Staten Island), service of process MUST be handled by licensed process servers.  In order to obtain a license within the five boroughs process servers must demonstrate the understanding of all the laws related to service of process by passing a competence exam related to New York Codes Rules and Regulation (NYCRR), Civil Practice Law & Rules (CPLR) and Federal Rules and Civil Procedure.

Filing For Paternity And What To Expect

What Is a Paternity Case?

When a child is born to parents who are not married to each other, the biological father is not considered the child’s legal parent unless the father has signed an “Acknowledgment of Paternity” (usually done at the hospital at the time of the child’s birth) declaring himself to be the child’s father, or an “order of filiation” has been entered, which is a court order that declares that person to be the legal father. A petition may be filed in Family Court seeking an order of filiation.

Why Is it Is Necessary to Have an Order of Filiation Made?

If a man was not married to the mother of the child, he has no obligation to pay support for the child, and has no legal right to custody or visitation with the child, unless he is legally named the father of the child, through an order of filiation or an acknowledgment of paternity.

Child Support and Who May File.

When parents live separately and one parent has custody of the child, that parent, called the “custodial parent”, may file a petition in Family Court asking the court to enter an order for the “non-custodial parent” to pay child support.

A child who is not emancipated and is living away from both parents may file a petition against his or her parents asking for an order of support to be paid to the child.

When a child is receiving public assistance benefits, or is living in a foster home and receiving foster care benefits, the Department of Social Services may file a petition against the non-custodial parent or parents asking that the court enter an order for child support to be paid to the government agency while it continues to pay benefits for the child.

FILING FOR AN ORDER OF PROTECTION IN FAMILY COURT.

You must go to the Help Center (“Petition Room”) between 8:30-5:00 Mon.- Fri. After you tell the clerk at the front desk you are there, you will be given forms to fill out, including one to write down the incidents of violence. When your name is called, you will see a clerk who will write the petition based on the information you gave on the form.

There are no filing fees in Family Court.

What Should I Put on My Petition for an order of protection?

Write down as many details as possible. In order to obtain an order of protection you must state that a “family offense” occurred. Many actions are family offenses, such as when a person verbally, physically, emotionally, or sexually abuses you, or threatens to hurt you. Describe when each incident occurred, where it occurred, what happened, whether you were injured (bruises, cuts), and whether weapons were used. It is best to include the most recent incident, the first incident and the worst incident. If there was verbal abuse, tell the clerk the exact words the respondent used. Tell the clerk if there is criminal court involvement and if there were earlier orders of protection. Before you sign the petition, read it carefully and tell the petition clerk if anything important has been left out. Make sure the petition is accurate and fully states what you want to tell the Judge.

Who Can File For An Order of Protection in Family Court?

You can file a petition in Family Court for an order of protection if

1) you are related to the respondent by blood or marriage;

2) you are or were legally married to the respondent; 

3) you have a child with the respondent; or 

4) you are or were in an intimate relationship with the respondent.

Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”. 

Landlord Tenant Resolution Part, What To Expect

A Resolution Part is a courtroom where the landlord and tenant can discuss their differences before a Judge or Court Attorney to see if an agreement can be reached to settle the dispute. You may also be there for a motion or an order to show cause.

A Resolution Part is presided over by a Judge, who is assisted by two court attorneys, a clerk, and a court officer. The court officer, wearing the uniform, stands in the courtroom to maintain order. The clerk, sitting at a desk at the front of the courtroom, can answer any questions you may have about the calendar or the Judge’s rules. The court attorneys, who are lawyers, assist the Judge. In addition, volunteer court representatives are present to assist. The Judge sits on the bench at the front of the Courtroom and hears motions and cases and reviews stipulations and orders to show cause.

Eviction Tips For Landlords For Holdover Cases

A holdover case is brought to evict a tenant or a person in the apartment who is not a tenant for reasons other than simple nonpayment of rent. A holdover case is much more complicated than a nonpayment case. A holdover proceeding can have many variations. For example, if the tenant has violated a lease provision, illegally put others in the apartment, has become a nuisance to other tenants, or is staying after a lease has expired, the landlord may bring a holdover case. A roommate who is named on the lease can also bring a holdover proceeding to evict a roommate who is not named on the lease from the apartment.

There may or may not be a landlord/tenant relationship, and the petitioner may or may not need to show a good reason why a respondent’s occupancy should be terminated. The rights of the parties may be determined by a lease or other agreement, housing laws and regulations and/or the New York State or United States Constitution. A predicate notice may or may not have to be served.