I signed a contract with a New York developer in September and the project was supposed to be finished by mid-December.
“Design Company will take all reasonable actions to complete the
website for Cornelius Wilson site by Dec 20, 2009. However, Client acknowledges that delays in Design Company receiving materials from Client or a third party may slow completion of the Services. Furthermore, additional changes made to the website during visualization stage by the client would also produce delays.”
He works on large projects, as he is a known developer, so I am assuming he has pushed my project to the side but that is no excuse regardless of his status as a developer. The project was $6000 and he was paid half upfront. I have the receipt from the deposit to his account. Prior to selecting him as the developer for the project I did search him up and there were legit reviews posted by 10 people that has had work done by him, and each one praised his work.
He never showed me any work as he said he was working on the backend first. But we were in contact daily just having normal conversations. That lasted for maybe 2 months of him contacting me. I stopped hearing from him in December, and even then there was no work that he could show me. Then in January supposedly there was a family tragedy, and I have only heard from him once.
“The project is coming along well, unfortunately due to the bereavement time that I have taken for the loss of my loved one it has been set back. I will be back from South America at the end of the month and will provide you with a realistic timeline that will enable us to get this site up and running. You are not the only one being set back here with a delivery date I have another 7 sites that are being worked on that also have been pushed back due to my situation.”
Now I have sent many e-mails and left about 10 voicemails since then, and have not received any responses. What should I do? Do I take him to small claims court? If so, what is the process of that? Should I mail him letters that will require signature or delivery confirmation?
You absolutely do not need to hire a lawyer in NYS, even if you are a business entity. And don’t concern yourself with collections, go ahead and get the judgment, then deal with that when the time comes.
I am in the reverse situation. My client stole the site I did for him and then slandered me to cover up and justify his thievery.
Several of my friends were against me filing an action against him in small claims court (for a much smaller amount than what you are owed), saying I wouldn’t be able to collect, or I might not win, or that he might be mafia, etc., but I went ahead with it on principle because he is probably pulling this stunt with others as well, and I want him to be accountable.
LegalZoom prepared the paperwork for me. After a court date was assigned to the case, I was contacted by the People’s Court. If the case is arbitrated by People’s Court, I will get the money regardless, and the client will be exposed on television for the liar and thief that he is.
You have to assert your rights or lose them. If people steal from us without consequence, and they don’t have the morals or ethics to refrain from doing so otherwise, they will continue to do this to others.
I pursued this case, even though it is small, to help protect the next person from being victimized. Hopefully he’ll think twice before stealing again.
The contract does not say anything about performance, and the only “breach” that is spoken of is…
“In the event that the client halts work and communicates by registered letter for a refund within 15 business days, to Design Company, work completed shall be billed at the hourly rate of $175 per hour, and deducted from the initial payment, the balance of which shall be returned to the client. If, at the time of the request for refund, work has been completed beyond the amount covered by the initial payment, the client shall be liable to pay for all work completed at the hourly rate of $175 per hour.”
There’s nothing in the contract that says something if the design firm does not complete project or etc. He doesn’t say anything when I contact him because I haven’t received a response in months.
If I take it to small claims court I want him to refund me. If he EVER responds back before I take him to small claims then I would want him to complete the project, but again I have left about 15 voicemails and 10 e-mails that have went unanswered since January 2010. This is why I am considering now mailing a letter to his address that would require a signature so that I know he received it.
What if I make the trip, and the other party does not show up?
You can check this online. The small claims court in NYS where I filed will award judgment to the plaintiff. However, defendant can reschedule at the last minute.
It costs very little to file a claim and once the defendant is served, they may finally respond to you.
Usually the jurisdiction in which you need to file would be determined by the contract. If you get a court date and the other party doesn’t show, you will usually be awarded a judgment in your favor but like most things in court, this depends on the discretion of the judge.
So do I have to take the individual to court in New York when I live in Georgia? A NY judge will set the date and I will have to appear. What if I make the trip, and the other party does not show up? What would happen then?
I stand corrected. After reading the post above I checked the small claims court web sites in both LA and NYC and found both courts will allow an officer of a corp to represent the corp in small claims. That being the case, I suspect other jurisdictions will allow it also.
A while back in Los Angeles County my partners company sued a client for about 4k, and the requirement was simply that a director of the company (not just a representative) was present.
Unfortunately, what looks like an open and shut case is never so.
You will need to sue the defendant in the state in which he resides, that is, New York. (If you need to sue him in your company name, you will need to hire a lawyer to represent you.)
Then, even if you win, you will need to pursue collection - never an easy task.
Since you are out $3,000 - a relatively small amount, and collection attorneys charge 40% of what they collect they are looking at a reward in this case of only $1,200 for the attorney. They are not going to put in a lot of work for what is to them a small sum of money.
I am sorry to say that you are not going to have an easy task of collecting any money from this fool even though you are completely in the right.
You need to be more clear about what you want, and what you are owed. The contract language will dictate the terms of your deal with him and may dictate what happens in the event of a dispute or breach (many do).
What does the contract say about non-performance, breech, dispute, stuff like that? What does the vendor say when you try to contact him? Have you done this via postal mail, in writing? Do you want him to ‘cure’ the contract, or just refund you (you need to decide before you push forward). Does the vendor have any more to refund you?
You don’t need a lawyer to read a contract, nor do you need a lawyer to decide what you want out of this. You also don’t need a lawyer in small claims court, especially if you have a signed copy of an agreement which lays out the situation. Small claims court is designed for people without lawyers and if your case is simple you should be ok.
I’d start with a good review of the contract, and an effort to contact the vendor and find out what is going on.
At this point your best bet is to talk to a lawyer.
Seeing as it’s a pretty open and shut case (as per your description) the mere act of serving him with court papers may be enough to get your money back.
Honestly I would want project finished but that doesn’t seem it is going to happen since I haven’t received a response since January, so now I do want money returned. I am located in Georgia. I intend on representing myself, but if not then if case is won I would of course make him responsible for all lawyer fees.
“This Agreement shall be governed by and construed in accordance with the laws of the State of New York.”
Are you physically located in New York?
If not, are you going to hire a lawyer to represent you?
If so, is the cost of the lawyer going to be higher than the amount of cash you can recover?
What does the contract state about legal issues (e.g. what state they will be adjudicated in)?
