My name is Michael Samuel. I have practiced in New York since 1993 and have defended businesses in commercial litigation, including breach of contract disputes, for most of that time. I track new commercial filings in the New York courts daily, so I usually know the plaintiff, and often the plaintiff’s lawyer, before you call.
The most important fact first. In federal court, the Southern or Eastern District of New York, you generally have 21 days from service to answer or move. In New York State Supreme Court, it is 20 days if you were served in person in New York and 30 days otherwise. The clock started when the papers reached you, not when the case was filed.
What the Lawsuit Claims
A commercial complaint says that a contract existed, that the plaintiff performed, that your company did not, and that the plaintiff was damaged in a stated amount. Around that core you will usually see related claims: account stated, unjust enrichment, and, if the agreement has a fee clause, a demand for the plaintiff’s attorneys’ fees on top of the principal.
Who is suing matters as much as what they claim. Merchant cash advance funders, factoring companies, and insurers on subrogation claims file in volume, on templates, and expect to settle. A supplier or a former partner is suing once, over a relationship, and the case is about the facts. The defense for each is different, and knowing which kind of plaintiff you have is the first thing I look at.
What Happens If You Do Nothing
A commercial lawsuit left unanswered does not go away. It typically ends in a default judgment against your company for the full amount demanded, plus interest, costs, and potentially attorneys’ fees if the underlying agreement contains a fee-shifting provision. Once a default judgment is entered, your company’s bank accounts and receivables can be restrained and collected against, and the judgment follows the company in its credit and banking relationships. Undoing a default is possible in some cases, and it is always more expensive than answering on time.
Defenses and Counterclaims
Every contract case turns on the agreement and the performance. The questions I ask in the first week: Was there a valid contract, and with whom? Did the plaintiff actually perform, on time and to specification? Is the amount demanded the amount the agreement supports, or has interest, fees, and penalties inflated it? Did the plaintiff cause its own loss, or fail to mitigate it? Does your company have claims of its own, for defective goods, unpaid work, or breach by the other side, that belong in the same case as counterclaims? In merchant cash advance cases there are further questions about whether the agreement is a purchase of receivables or a disguised loan, and about how any confession of judgment was obtained.
Court records also matter. Before the firm writes to any defendant we check the docket, and before we take a case we read it in full, because what the plaintiff has filed and when tells you a great deal about how they intend to run the case.
What to Do in the First 48 Hours
- Calendar the deadline from the date on your summons, and get counsel involved before it, not after.
- Gather the agreement and the paper around it: the contract, amendments, invoices, delivery records, emails about performance, and any demand letters that came before the lawsuit.
- Do not contact the plaintiff or its lawyer yourself. Anything you say about the agreement or the debt will be used.
- Do not move money in reaction to the complaint. Transfers made after service can be attacked later and make a defensible case look otherwise.
- Check your insurance. Some commercial policies respond to certain contract-related claims or to the defense costs.
What Defending the Case Looks Like
I review the agreement, the complaint, and the circumstances of the dispute to identify available defenses and any viable counterclaims, and to develop a strategy tailored to the case. Some cases are resolved by a well-timed answer and a negotiation with a plaintiff that expected a default. Some warrant a motion at the outset. Some need discovery to test the plaintiff’s numbers. In every case the goal is the same: end it on terms that reflect what the agreement actually says, and end it before the fees on both sides outrun the amount in dispute.
A Transparent Fee, Agreed Up Front
You will know the cost of the defense before you decide anything. I quote the fee up front, explain what it covers, and tell you what the realistic outcomes are in the same conversation, so you understand the costs involved from the outset. There is no charge for the initial consultation.
Frequently Asked Questions
How long do I have to respond to a breach of contract lawsuit in New York?
Federal court: generally 21 days from service. New York State Supreme Court: 20 days if served in person in New York, 30 days otherwise. Confirm the exact date with counsel immediately.
The plaintiff is a merchant cash advance company. Is that different?
Yes. These cases are filed in volume on template complaints, often with a confession of judgment, and they raise specific questions about whether the agreement is a true purchase of receivables. They also settle in predictable ways when answered on time.
What if my company was not properly served?
Defective service can be a defense, but it has to be raised the right way and on time. Do not assume bad service means the case can be ignored; a default judgment can still be entered and then has to be undone.
Can my company countersue?
If the other side breached first, delivered defective goods, or owes you money under the same relationship, those claims can be brought as counterclaims in the same case. Evaluating them is part of the first week’s work.
What will the defense cost?
The fee is quoted before you commit and the initial consultation is free. What the case costs to resolve depends on the agreement and the plaintiff, which is what I evaluate first.
If You Have Been Served, Do This Today
Bring the summons, the complaint, and the agreement to a lawyer who defends these cases, before your deadline. Call me directly at 212-563-9884, or use the form on this page. Businesses sued under the ADA can read about our ADA defense practice; employers served with a wage claim, see responding to a wage and hour lawsuit.
Michael Samuel has practiced law in New York since 1993 and defends businesses in commercial and contract litigation. He is admitted to the New York bar (Registration No. 2563005) and before the United States District Courts for the Southern and Eastern Districts of New York.
Attorney Advertising. This page is general information and not legal advice. Reading it does not create an attorney client relationship. Prior results do not guarantee a similar outcome.
