PART III : BEGINNING LITIGATION
The beginning of litigation refers to the start of an actual lawsuit. In cases where a NOTICE OF CLAIM was required to be filed, the law prohibits the commencement of legal action before the Notice of Claim is filed AND before the agency or governmental subdivision against which it was filed has had an opportunity to question the claimant. This questioning is called a “50 H Hearing”, the statutory name for what is simply an oral deposition of the claimant. Sometimes the “50 H Hearing is waived by the governmental entity, sometimes not. Once the hearing is held, or waived, the papers to begin the lawsuit may be filed in court, and then served on the defendant or defendants. (You, the person bringing the lawsuit, is known as the PLAINTIFF). The filing of the papers in court BEGINS the actual lawsuit.
In cases that do not require the filing of a Notice of Claim, the papers to begin the lawsuit, generally a Summons and Complaint, may be filed in court and then served upon the defendant (or defendants) at any time. The service of the Summons and Complaint is usually performed by a professional process server that works for a Process Service company. There are legal requirements as to when and how legal documents may be served, and cases can arise where the method of service will be vital to the viability of that case. This is especially true in cases that are begun very near the expiration of the Statute of Limitations, when improper service can mean the time limit within which a lawsuit MUST be brought has expired, and there is no recourse!
Just a special note regarding Statutes of Limitations:
Never, ever think you have enough time to contact your attorney about a possible lawsuit “because my friend told me that I have three years…” Time limits within which you MUST bring lawsuits vary greatly. Most negligence actions have three year time limits, most medical malpractice have two and a half, most intentional acts require lawsuits within one year, and so on. However, there are exceptions to virtually every rule. Get to an experienced attorney by calling our New York City Law Firm at The Orlow Firm before your opportunity to litigate disappears!