Dokoudovsky v. 21043 Corp.

Appellate Division of the Supreme Court of New York

Dokoudovsky v. 21043 Corp.

189 A.D.2d 618

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 12, 1993

StatusPublished

This text of 189 A.D.2d 618 (Dokoudovsky v. 21043 Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dokoudovsky v. 21043 Corp., 189 A.D.2d 618 (N.Y. Ct. App. 1993).

Pincite

Opinion

— Order, Supreme Court, New York County (Myriam J. Altman, J.), entered on or about June 22, 1992, granting defendants’ motion to strike plaintiffs jury demand, unanimously reversed, on the law, with costs and disbursements, and the motion denied.

It was error to make a factual finding of non-service on the basis of conflicting claims contained in the moving and answering papers with respect to the service of a note of issue containing a jury demand. The forum for the resolution of such claims is a traverse. In any event, in the face of a duly filed affidavit of service by mail, and the presumption it carries of a proper mailing (see, Engel v Lichterman, 62 NY2d 943), counsel’s affirmation acknowledging receipt of the contemporaneously prepared Preliminary Conference Statement but disclaiming, in conclusory fashion, receipt of the note of issue — "No note of issue was in the envelope or separately received” — was insufficient even to raise a controversy (see, supra, at 945).

The motion should have been denied. Concur — Sullivan, J. P., Milonas, Kupferman and Ross JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

— Order, Supreme Court, New York County (Myriam J. Altman, J.), entered on or about June 22, 1992, granting defendants’ motion to strike plaintiffs jury demand, unanimously reversed, on the law, with costs and disbursements, and the motion denied.

It was error to make a factual finding of non-service on the basis of conflicting claims contained in the moving and answering papers with respect to the service of a note of issue containing a jury demand. The forum for the resolution of such claims is a traverse. In any event, in the face of a duly filed affidavit of service by mail, and the presumption it carries of a proper mailing (see, Engel v Lichterman, 62 NY2d 943), counsel’s affirmation acknowledging receipt of the contemporaneously prepared Preliminary Conference Statement but disclaiming, in conclusory fashion, receipt of the note of issue — "No note of issue was in the envelope or separately received” — was insufficient even to raise a controversy (see, supra, at 945).

The motion should have been denied. Concur — Sullivan, J. P., Milonas, Kupferman and Ross JJ.

Cite This Page — Counsel Stack

Bluebook (online)

189 A.D.2d 618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dokoudovsky-v-21043-corp-nyappdiv-1993.

Opinion

Related

Cite This Page — Counsel Stack