Legal Question in Civil Litigation in New York

Re: Filing an answer and counterclaims

Since you clealy do not know what you are doing- the best advise I can give you is retain an attorney and protect your rights.

Daniel Clement

Re: Filing an answer and counterclaims

An "answer" to a complaint is just what is sounds like, for every paragraph of the complaint, you "answer" it. By "answering" a complaint (or, more particularly, each numbered paragraph of it), you can (i) deny the allegation if it is untrue or something that you want to contest; (ii) admit the allegation if it is true or something you do not contest; or (iii) deny knowledge or information sufficient to form a belief as to the truth of the allegation. As to (iii), this would apply if, for example, the plaintiff alleged that he or she lived at a particular address, and you did not know where the plaintiff lived. In such circumstances, you would "answer" that particular allegation by using the language of (iii) above.

After you complete the "answer" to each paragraph of the complaint, you would want to include your "affirmative defenses," and you would set it up similarly to how the complaint sets up the "counts" of the complaint (assuming the complaint has more than one count). So, you would put a little heading of, say, "First Affirmative Defense" and then you would plead the affirmative defense.

There are quite a few affirmative defenses, such as the lawsuit is barred as being beyond the statute of limitations. Basically, an affirmative defense is something that you would have to prove -- it would be your burden -- in order to defeat the plaintiff's claim. This is to be distinguished from "winning" the case because the plaintiff failed to establish an element of his claim, i.e., in a breach of contract action, the lawsuit might fail because the plaintiff failed to prove the existence of a contract -- in this instance, your defense would simply be that no contract existed, which is required of the plaintiff to prove; therefore, it is not an affirmative defense. On the other hand, in the statute of limitations example, you would have to offer proof of when the claim arose and that the lawsuit was not filed until after the expiration of the statute of limitations.

You can then put in "counterclaims" to the plaintiff's suit. This occurs were you want money (or some other relief) from the plaintiff, rather than simply not wanting the plaintiff to obtain some relief against you.

I hope you find this short primer helpful.

-- Kenneth J. Ashman; Ashman Law Offices, LLC; 156 West 56th Street, Suite 1920, New York, NY 10019; [email protected]