Defendant had motion to dismiss sued the wrong person

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Latest post Fri, Apr 18 2008 6:53 PM by LynnM. 16 replies.
  • Wed, Apr 16 2008 11:31 PM

    • pricjj10
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    Question [=?] Defendant had motion to dismiss sued the wrong person

    I tried to sue a lady ( an employee at a college in New York) at a small claims court for services I paid for and didnt receive. She was represented by the attorney general ( the lady is an elected official that works for a state college). The attorney general filed for motion because i was suing the wrong person and i was in the wrong type of court.

    The judge ruled in the defendants favor.

    The judge told me I would have to sue the college and bring everyone thats involved ( I believe this is what the judge was trying to tell me) and the attorney general told me i would have to go to a county smalls claim court ( i believe she said county).

    I thought small claims court was to go to court without being represented and to sue under 5000 dollars. I feel like i dont have a case if i go to a different court because I am representing myself and I already went to court for this, and the defendant is being represented by the attorney general.

    My other concern is I'm not sure who I am suing. Am I suing the state college, the department i paid my services to and the lady? and what court would I have to sue the state?
  • Thu, Apr 17 2008 3:34 AM In reply to


    Feedback [*=*] re: Defendant had motion to dismiss sued the wrong person

    If you are suing a governmental entity or an employee of a governmental entity for actions they took in the course of their employment, you must adhere to your state's governmenta tort claims act. That generally means that first a claim has to be submitted within a set time (180 days or less) in a specific form. IF that claim is denied then you can file a suit but it usually cannot be in small claims. If you're not sure what you are doing, it is best to consult counsel.
  • Thu, Apr 17 2008 9:49 AM In reply to

    re: Defendant had motion to dismiss sued the wrong person

    What's your case about?

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Thu, Apr 17 2008 10:33 AM In reply to

    re: Defendant had motion to dismiss sued the wrong person

    "I tried to sue a lady"

    I'm not sure what "tried to sue" means. It sounds like you DID sue her.

    "My other concern is I'm not sure who I am suing. Am I suing the state college, the department i paid my services to and the lady? and what court would I have to sue the state?"

    Seeing as how you've basically told us nothing about what gave rise to your claim other than that you paid for services you didn't receive and the person you sued is an elected official having something to do with a community college, we really can't answer these questions. You need to tell us something about why you're suing.
  • Thu, Apr 17 2008 10:34 AM In reply to

    Note [#=#] re: Defendant had motion to dismiss sued the wrong person

    "If you are suing a governmental entity or an employee of a governmental entity for actions they took in the course of their employment, you must adhere to your state's governmenta tort claims act."

    I could be wrong, but it sounds to me like this is a contract claim, rather than a tort claim.
  • Thu, Apr 17 2008 4:51 PM In reply to

    • compiler
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    re: Defendant had motion to dismiss sued the wrong person

    What problem could you not understand or you actually did not know how to answer? You always pick on some words. The poster has clearly told you. He paid the school fees for the service but never received it. Is it necessary to tell you what exact service he has paid? He wants to sue but does not know how to sue.
  • Thu, Apr 17 2008 4:55 PM In reply to

    • pricjj10
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    Feedback [*=*] re: Defendant had motion to dismiss sued the wrong person

    I'm suing because of the principle of the matter.
    ( this incident happened 3/14/08)

    I saw a counselor at college( defendant) which was for 90 minutes. 30 minutes to fill out a questionare form and 60 minutes with the counselor ( There is unlimited sessions).

    I was given a contract with all the rules and how the services work when i was filling out the questionare form

    For about 10 mins the counselor assesed me by reiterating what i wrote on the questionare form and she came across that i wrote N/A for an address and/or telephone number. I told the counselor im not giving that out. and she said fine i will come back to that part later.

    After she continued to ask me more questions for about 20 mins, she came back to asking me in several different ways to get my contact information i kept telling her no, she said i qoute "i need it for a peace of mine just in case you stop coming without telling me, i can contact you to make sure your ok, and you just coming in here and leaving just isnt going to cut it." I explained to the counselor I have a big issue with the contact information and i just want to come in and go.

    I said point blank your not going to help me because I won't give out my contact information and she said yes, so i then walked out the office.

    The next day I talked to the receptionist at the counseling center and asked, "can a counselor refuse to help a client for any reason" she said NO, but let me direct you to another counsel to better answer your question the counselor said the same thing. Also in the contract there is no policy stating i have to give my contact information away.

    The point I making is the counselor refused to help and that is what they are there for.

    The first time i went to court this is what i was suing for listed below, but the judge didnt hear my case because of the motion to dismiss.

    I tried to sue for emotional distress over this matter (it was already hard to see a counselor now i have to re- tell this story to another counselor), but the clerk at smalls claim court told me i cant because there is no dollar amount on distress.


    I pay a loan to the college and there is a mandatory $115 health fee ( i wasn't suing for the whole amount)

    I was also suing for reimbursment for seeking another counselor for a reasonable number of sessions. ( I have NOT seen another counselor yet, but if can sue for that, thats what i plan on using that money for, I did an internet search and found the cheapest counselor)

    I was also suing for 2 hours of her salary
    ( I have proof for all three items)





  • Thu, Apr 17 2008 7:04 PM In reply to

    • LynnM
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    News [|*|] Just to start:

    Who is "the lady" and why should she be sued?

    WHY was the service not provided?

    Who is responsible for providing the service?
  • Thu, Apr 17 2008 7:05 PM In reply to

    Angry [:@] re: Defendant had motion to dismiss sued the wrong person

    "Is it necessary to tell you what exact service he has paid?"

    Yes! I wouldn't have asked if that weren't the case.

    Contrary to your apparent opinion, I don't ask questions to be a *** or because I get a kick out of doing so. I ask because I believe there is some missing piece of information that is necessary to a proper analysis.

    This isn't a simple case of Bob paying Larry to mow the lawn and Larry not doing it. The poster wants to sue a public official over something that the official apparently did in her capacity as such, and such situations are governed by a whole different set of rules.

    Perhaps you ought not chime in where you don't understand what's going on.
  • Thu, Apr 17 2008 7:13 PM In reply to

    Disagree [)*(] re: Defendant had motion to dismiss sued the wrong person

    "I saw a counselor at college( defendant)"

    I thought you said this person was an elected official. Counselors at community colleges are not elected officials.

    "The next day I talked to the receptionist at the counseling center and asked, "can a counselor refuse to help a client for any reason" she said NO"

    Well...first of all, a receptionist is hardly a good source of information about what a counselor can and cannot do. Second, the counselor didn't refuse to help you for "any" reason. She refused for a very specific reason (one which is completely reasonable).

    "I tried to sue for emotional distress over this matter (it was already hard to see a counselor now i have to re- tell this story to another counselor), but the clerk at smalls claim court told me i cant because there is no dollar amount on distress."

    "Emotional distress" is a form of damages, not a cause of action. In order to recover for emotional distress, you must have a viable cause of action, and you don't. Even if you did, small claims courts can't typically award such damages.

    "I was also suing for reimbursment for seeking another counselor for a reasonable number of sessions."

    So...let me get this straight. You think the school must provide you services without being able to impose any conditions? Sorry. Not so. Even if that were the case, AT MOST, you could recover the health fee. You would not be able to recover what you had to pay to get the services elsewhere. And, I guarantee you that no mental health professional will treat you without contact information.

    "I was also suing for 2 hours of her salary"

    Why on Earth would you think YOU could sue for HER salary? How is that an element of damages for you?
  • Thu, Apr 17 2008 7:31 PM In reply to

    re: Defendant had motion to dismiss sued the wrong person

    Depending on what this "health fee" is for and what period of time it covers, among other things, you might be able to sue the college for that.

    But suing this counselor was never going to get you anywhere; she evidently works for the college (heck, she might not even work for the college but for some service/company that contracts with the college to provide counseling services). You have no case against her. Small claims courts also don't handle emotional distress claims, and could not recover for the cost of having to seek counseling services elsewhere.

  • Fri, Apr 18 2008 12:40 PM In reply to

    • LynnM
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    Disagree [)*(] re: Defendant had motion to dismiss sued the wrong person

    You have no grounds to sue anyone involved, at least not that I can see.

    The college is not obligated to provide counseling services on your terms. You certainly have no claim to damages based on someone else's salary. And if you chose to see a different counselor you are certainly not entitled to have that cost paid.
  • Fri, Apr 18 2008 4:30 PM In reply to

    • pricjj10
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    re: Defendant had motion to dismiss sued the wrong person

    I thought you said this person was an elected official. Counselors at community colleges are not elected officials.

    The judge told me she was an elect official because she is hired by the state ( it is not at a community college it is a State college)

    Why on Earth would you think YOU could sue for HER salary? How is that an element of damages for you?

    Because she didnt do her job for the 90 minutes she was suppose to give me, and she wasted my time. She shouldnt be entitle to something she didnt earn
  • Fri, Apr 18 2008 4:47 PM In reply to

    • pricjj10
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    re: Defendant had motion to dismiss sued the wrong person

    Taking from what I read from everyone's comments
    I cant sue for someone's salary and i cant sue to seek service elsewhere

    But i might be able to sue the college for the health fee. ( the $115 mandatory health fee covers a semester jan-may, the health fee is for the dentist, counseling service and medical services). This incident is the first time i have use the health fee for the semester.

    * you also have to have your own health insurance on top of this( your own insurance + health fee )*

    But it is odd to me that the college is not obligated to provide me service therefore i have no grounds for suing.

    I think they should if i pay for it.
  • Fri, Apr 18 2008 6:53 PM In reply to

    • LynnM
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    Disagree [)*(] re: Defendant had motion to dismiss sued the wrong person

    Well, you got part of it right.

    But the health fee is there to provide access to all those services UNDER THE TERMS SPECIFIED. You can't sue for the return of that money because (a) you still had access to the other services and (b) if you had complied with their requirement to provide contact information you would have gotten these services as well.

    You are free to hire a different therapist - just don't expect anyone else to pay for it but YOU. The health fee is not an insurance policy that allows you to hire the provider of your choice.
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