You believe you have a valid case.

You believe you have a strong case.

You believe the driver was careless and caused you really bad injuries.

Maybe instead of a car accident, you believe that a doctor violated the basic standards of medical care and caused you significant injury. You decide to find a lawyer.

You find a lawyer in New York who proceeds forward and starts a lawsuit on your behalf. Your goal is to obtain compensation for all the harms and injuries you suffered because of someone else's carelessness and negligence.

Yet only days after your awsuit has been started, your attorney calls you to give you bad news.

The defense attorney has decided to try and get your case dismissed before your case actually gets started.

You are furious. You are upset. You are frantic.

“What do you mean the defense is trying to get my case dismissed? I have an excellent case!”

You know that. Your attorney knows that, but the defense doesn't care. The defense is going to do everything possible to try and get your case dismissed before ever proceeding forward with the discovery phase of your case.

Legally, this is known as making a motion to dismiss in lieu of an answer.

What does that mean?

In order to start a lawsuit in New York, an attorney has to prepare two sets of documents.

  • The first is known as a summons.
  • The second is known as a complaint.

A summons is a one page document that lets the person you are suing know that they have a specific time period within which to answer the allegations in the next document called a complaint.

The complaint is an often lengthy document that sets forth tgeneral allegations you are making against the different people and companies who caused you harm.

Once those two documents have been prepared, it is necessary to go into court and purchase an identifying number for your case. In New York, that is known as purchasing an index number. Once that identifying number has been bought, that number then gets placed on both the summons and complaint and a copy of those lawsuit papers are then filed with the clerk of the court.

Your attorney then has a specific time within which to take a copy of those two documents, known as a summons and complaint to deliver it to the people you are suing.

How are those lawsuit papers delivered to the people who caused you injury?

Your attorney does not actually take those documents and personally deliver it to the people you are suing.

Instead, he will use a person known as a “process server” to deliver the documents on his behalf. There are very specific ways in which those lawsuit documents but must be delivered to the people you are suing in order to properly start your case.

Typically, the people who are receiving those lawsuit papers will then take the summons and complaint and send it to their attorney. The lawyer who represents those people and companies are known as defense attorneys. The defense attorney will then review those documents, speak to his clients and prepare a document known as an “Answer.”

An answer is simply a response to your lawsuit allegations. It's exactly what it sounds like.

The defense is answering the allegations that you have made in your lawsuit.

At that point, your attorney will then notify the court that the discovery process is now ready to proceed forward.

Depending upon what type of case this is, the method by which your attorney notifies the court is either by filing a document known as an “RJI” which means a “request for judicial intervention," or if this is a medical malpractice case, your attorney will file a document called “a notice of medical malpractice action.”

In either case, those documents notify the court that all the attorneys who should be in the case have now answered and appeared. Legally, we say that “Issue has been joined.” All that means is that everybody has been properly sued and that the people you are suing are now represented by attorneys who have answered the allegations.

There are some cases that don't exactly follow this sequence.

In some cases a defense attorney might think he could ask the court to dismiss your case before ever answering the allegations to your lawsuit. That strategy has one key drawback.

The drawback is that it is often a premature strategy.

In other words, once the lawsuit papers are delivered to the people you are suing, if the defense attorney tries to get your case dismissed before answering the allegations, he must give the court specific legal reasons why your case is invalid and should not proceed forward.

If the judge agrees with the defense attorney that your case does not have merit and does not legally warrant going forward, then the judge will dismiss your case.

On the other hand, what I've seen happen most of the time is that the judge will recognize that making this request to dismiss your lawsuit at such an early stage is premature. When that happens, the judge will deny the defense's request to throw out your case and instead tell the attorneys to proceed forward with discovery.

The judge will then give the defense lawyer an opportunity to ask for permission to dismiss your case later on, once he has more facts and the case has been fully developed.

When you learn the defense lawyer has used this strategy so early in your case, there's a good chance you will be offended and upset.

That's understandable.

Your attorney will have to submit papers to oppose the defense lawyer's request and give legal reasons why the defense's request lacks merit and should be denied.

In reality, this strategy the is nothing more than a preemptive strike to get your case dismissed before your case ever really get started. In some limited instances, it will work. But, in the majority of cases it will likely be premature and the judge will hold off until the facts have been fleshed out.

To learn more about how this process works, I invite you watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer