Commencing Litigation: Pleadings

Pleadings are the foundation of any legal action. They serve as the initial communication between parties and set the stage for the issues to be resolved throughout the litigation process. In New York, like in many other jurisdictions, the first step in commencing a lawsuit is by filing a complaint. This document outlines the relevant facts, the legal basis for the claim, and the relief sought by the plaintiff.

The process of commencing a lawsuit involves several key steps, including drafting the complaint, filing it with the court, and serving it on the defendant. Each step requires careful attention to detail, as mistakes can lead to delays or dismissal of the case. In this article, we will discuss the purpose of a complaint, its key elements, and the process of drafting, filing, and serving it in New York.

We will also discuss the defendant’s response to a complaint, known as the answer, and alternatives to a complaint, such as a petition. By understanding these elements and processes, you can take the first steps toward successfully commencing a lawsuit in New York. Once commencement of the lawsuit is completed, the parties move onto discovery

Understanding the Purpose of a Complaint

The primary purpose of a complaint is to provide a clear and concise statement of the relevant facts that support the plaintiff’s claim, the legal basis for the claim, and the relief sought. It serves as a roadmap for the case, giving all parties and the court a clear understanding of the issues to be resolved.

A well-drafted complaint can also serve several strategic purposes. It can help to frame the issues in a way that is most favorable to the plaintiff, and it can communicate the strength of the plaintiff’s case to the defendant. This can be particularly important in encouraging settlement discussions or negotiations, as a strong complaint can signal to the defendant that they should take the plaintiff’s claims seriously.

Overall, the complaint is a critical component of the litigation process, as it sets the stage for the entire case and plays a pivotal role in determining the outcome.

The Summons and Notice of Petition

In addition to the complaint, a plaintiff must also prepare and serve a summons on the defendant. The summons is a formal notice to the defendant that they are being sued and must respond to the complaint within a specified time. In New York, the summons must include the basis for the court’s jurisdiction, the nature of the action, and the relief sought.

In some cases, the plaintiff may also need to serve a notice of petition. This document is used primarily in special proceedings and serves a similar purpose as the summons, notifying the defendant of the action and their obligation to respond. Whether a notice of petition is required will depend on the specific type of case and the applicable rules.

Key Elements of an Effective Complaint

An effective complaint includes several key elements that are necessary for a successful lawsuit. These elements are:

  1. Jurisdiction and venue: The complaint must establish that the court has jurisdiction over the subject matter and the parties involved in the lawsuit. It must also identify the proper venue, or location, for the case.
  2. Parties: The complaint must identify the plaintiff and the defendant, including their names and addresses. If there are multiple plaintiffs or defendants, each party should be listed separately.
  3. Statement of facts: The complaint should contain a clear and concise statement of the facts that support the plaintiff’s claim. This includes a description of the events that led to the dispute, the harm suffered by the plaintiff, and the actions or omissions of the defendant that caused the harm.
  4. Causes of action: The complaint must identify the specific legal basis for the plaintiff’s claim, such as breach of contract, negligence, or fraud. Each cause of action should be listed separately and include a description of the relevant law and how it applies to the facts of the case.
  5. Relief sought: The complaint must specify the relief sought by the plaintiff, such as monetary damages, an injunction, or specific performance. This can include both primary relief, such as compensation for the plaintiff’s harm, and ancillary relief, such as attorney’s fees or interest.

Drafting the Complaint: Step-by-Step Guide

  1. Gather information: Before drafting the complaint, gather all relevant information about your case, including documents, correspondence, and witness statements. This will help you to develop a clear and accurate statement of facts.
  2. Identify the legal basis for your claim: Research the applicable laws and identify the specific causes of action that support your claim. This may require consultation with an attorney, particularly if your case involves complex legal issues.
  3. Draft the complaint: Using the information you have gathered, draft the complaint according to the key elements discussed above. Be sure to use clear and concise language, and to organize the complaint in a logical manner.
  4. Review and revise: Once you have drafted the complaint, review it carefully for accuracy and completeness. Make any necessary revisions to ensure that the complaint clearly and effectively communicates your claim.
  5. Prepare the summons and notice of petition: If required, prepare the summons and notice of petition according to the applicable rules. These documents should be consistent with the information provided in the complaint.

Responding to a Complaint: The Answer

Once the defendant has been served with the complaint, they must file a response, known as the answer. The answer is the defendant’s opportunity to respond to the allegations in the complaint, and to assert any defenses or counterclaims that they may have.

The answer should be drafted carefully, as it serves as the foundation for the defendant’s case. It must include a response to each allegation in the complaint, either admitting or denying the truth of the allegation, or stating that the defendant lacks sufficient information to admit or deny the allegation.

In addition to responding to the allegations, the answer should also assert any affirmative defenses that the defendant may have. These are legal defenses that, if proven, would negate the plaintiff’s claim, even if the allegations in the complaint are true.

Alternatives to a Complaint: The Petition

In some cases, a plaintiff may choose to commence a lawsuit using a petition rather than a complaint. A petition is similar to a complaint, but is typically used in special proceedings, such as cases involving administrative agencies or public officials.

The key difference between a complaint and a petition is the nature of the relief sought. In a petition, the plaintiff typically seeks a specific action or decision from the court, rather than monetary damages or other remedies. For example, a petition might request that the court issue a writ of mandamus, directing a public official to perform their duties, or a writ of certiorari, ordering an administrative agency to review a decision.

Filing Your Complaint in New York Courts

Once you have drafted your complaint, you must file it with the appropriate New York court. The specific process for filing will depend on the type of case and the court in which it is filed. Generally, you will need to pay a filing fee and submit the original complaint, along with any required copies, to the court clerk.

It is important to file your complaint within the applicable statute of limitations, which is the time period within which a lawsuit must be filed. Failure to file within the statute of limitations can result in the dismissal of your case.

Serving the Complaint and Answer

After filing the complaint, you must serve it on the defendant, along with the summons and any required notices. Service of process is a critical step in commencing a lawsuit, as it ensures that the defendant has proper notice of the action and an opportunity to respond.

In New York, service of the complaint and summons can be accomplished through various methods, such as personal delivery, delivery to a designated agent, or, in some cases, by mail. The specific method of service will depend on the type of case and the applicable rules.

Once the defendant has been served, they must file their answer with the court within the time specified in the summons. Failure to do so can result in a default judgment, which means that the plaintiff may be awarded the relief sought in the complaint without further proceedings.

Common Mistakes to Avoid When Drafting a Complaint

When drafting a complaint, it is important to avoid common mistakes that can undermine the effectiveness of your lawsuit. These mistakes include:

  1. Failure to establish jurisdiction and venue: Be sure to include a clear statement of the basis for the court’s jurisdiction and the proper venue for the case.
  2. Omitting necessary parties: Ensure that all necessary parties are named and identified in the complaint.
  3. Inadequate statement of facts: Provide a clear, concise, and accurate statement of the relevant facts that support your claim.
  4. Failure to identify causes of action: Research the applicable laws and clearly identify the specific causes of action that support your claim.
  5. Vague or ambiguous relief sought: Specify the precise relief sought, including both primary and ancillary relief.


Drafting an effective complaint is the first and most important step in commencing a lawsuit in New York. By understanding the purpose, key elements, and process of drafting a complaint, as well as the importance of the answer and alternatives to a complaint, you can prepare a strong foundation for your case and increase your chances of success in litigation.

Remember to pay careful attention to detail throughout the process, as mistakes can lead to delays or dismissal of your case. If you are unsure about any aspect of drafting a complaint or commencing a lawsuit, consider consulting with an experienced attorney for guidance and support.

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Gregory A. Byrnes

Gregory A. Byrnes
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New York, NY 10016
(646) 448-5279


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