Liberty Queens Medical, P.C. v. Travelers Indemnity Co.

Nassau County District Court

Liberty Queens Medical, P.C. v. Travelers Indemnity Co.

194 Misc. 2d 628, 756 N.Y.S.2d 407, 2003 N.Y. Misc. LEXIS 130

DecidedFebruary 14, 2003

StatusPublished

This text of 194 Misc. 2d 628 (Liberty Queens Medical, P.C. v. Travelers Indemnity Co.) is published on Counsel Stack Legal Research, covering Nassau County District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Liberty Queens Medical, P.C. v. Travelers Indemnity Co., 194 Misc. 2d 628, 756 N.Y.S.2d 407, 2003 N.Y. Misc. LEXIS 130 (N.Y. Super. Ct. 2003).

Pincite

Opinion

OPINION OF THE COURT

Scott Fairgrieve, J.

The application to file for a trial de novo is granted. There is no affidavit of service to demonstrate that defendant was in fact served with the notice of filing of the award with the clerk of the court as per 22 NYCRR 28.12. Plaintiff relies upon unsworn claims that the defendant was in fact served with the notice of filing of the arbitration award. Based upon the holding of Gordon v Siben & Siben (146 Misc 2d 553 [App Term, 2d Dept 1990]), defendant’s time to file a demand for a trial de novo did not commence to run until proper service of the required notice with a sworn affidavit of mailing concerning same. In Gordon (at 556), the court held: “In our opinion, these unsworn documents were insufficient to establish service of the notice of filing as a matter of law.”

[629]*629This court disagrees with the holding of New York City Med. & Neurological Off. v Allstate Ins. Co. (Nassau Dist Ct., Index No. 2460/1999, Nov. 12, 2001, Miller, J.), that unsworn proof of service (mailing) is sufficient to commence the time for a party to file for a trial de novo. This court specifically rules that a sworn affidavit of mailing is required to start a party’s time to file for a trial de novo pursuant to 22 NYCRR 28.12.

For the foregoing reasons, defendant’s motion is granted.

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OPINION OF THE COURT

Scott Fairgrieve, J.

The application to file for a trial de novo is granted. There is no affidavit of service to demonstrate that defendant was in fact served with the notice of filing of the award with the clerk of the court as per 22 NYCRR 28.12. Plaintiff relies upon unsworn claims that the defendant was in fact served with the notice of filing of the arbitration award. Based upon the holding of Gordon v Siben & Siben (146 Misc 2d 553 [App Term, 2d Dept 1990]), defendant’s time to file a demand for a trial de novo did not commence to run until proper service of the required notice with a sworn affidavit of mailing concerning same. In Gordon (at 556), the court held: “In our opinion, these unsworn documents were insufficient to establish service of the notice of filing as a matter of law.”

[629]*629This court disagrees with the holding of New York City Med. & Neurological Off. v Allstate Ins. Co. (Nassau Dist Ct., Index No. 2460/1999, Nov. 12, 2001, Miller, J.), that unsworn proof of service (mailing) is sufficient to commence the time for a party to file for a trial de novo. This court specifically rules that a sworn affidavit of mailing is required to start a party’s time to file for a trial de novo pursuant to 22 NYCRR 28.12.

For the foregoing reasons, defendant’s motion is granted.

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Bluebook (online)

194 Misc. 2d 628, 756 N.Y.S.2d 407, 2003 N.Y. Misc. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liberty-queens-medical-pc-v-travelers-indemnity-co-nydistctnassau-2003.

Opinion

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