Bronx Radiology, P.C. v Allstate Ins. Co.

[*1] Bronx Radiology, P.C. v Allstate Ins. Co. 2009 NY Slip Op 51581(U) [24 Misc 3d 1223(A)] Decided on July 20, 2009 District Court Of Nassau County, Third District Ciaffa, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 20, 2009
District Court of Nassau County, Third District

Bronx Radiology, P.C., A/O CLARA GERMOSEN, LUIS MERCEDES, ELBA RYMER, Plaintiff(s),

against

Allstate Insurance Company, Defendant.



00034/04



Israel, Israel & Purdy, LLP, 11 Grace Ave., Suite 111, Great Neck, NY 11021, Attorney for Plaintiff.

Law Office of Robert P. Tusa, Esq., 1225 Franklin Ave., Suite 500, Garden City, NY 11530, Attorney for Defendant.

Michael A. Ciaffa, J.

Motion by plaintiff for leave to serve a late demand for trial de novo is DENIED.

Plaintiff's moving papers admit that it received a copy of the arbitrator's decision, dated December 5, 2008, from both the Court and from defendant's counsel.The latter copy was received together with a demand for trial de novo of a similarly captioned matter, bearing a different index number. Both copies of the decision included a standard section filled out by the Clerk giving the parties notice of the filing of the award.

Notwithstanding plaintiff's admitted receipt of two copies of the award containing such notice, plaintiff did not timely file a demand for trial de novo (see 28 NYCRR §28.12), due to its mistaken belief that the defendant had demanded a trial de novo with respect to the very same subject award. When it finally realized that the defendant's demand for trial de novo bore a different index number, it belatedly attempted to file its own demand for trial de novo. The Clerk rejected the filing.

Regrettably, the Court lacks the power to grant the relief requested. The time limit for filing a demand for trial de novo (28 NYCRR §28.12) is akin to the time limit for filing a notice of appeal. Courts lack discretion to extend either time limit. See Chase v. Scalini, 97 AD2d 25 (2d Dept. 1983).

Nor can the Court avoid the strictness of the rule by finding that plaintiff was never properly served with notice of filing of the award. Under controlling precedent, service of the award may be made "either by the court or by a party." Gordon v. Siben & [*2]PAGE 2

INDEX No.00034/04

BRONX RAD. V. ALLSTATE

Siben, 146 Misc 2d 553, 556 (App Term 1990). The Court file, and plaintiff's motion, show that the Court Clerk completed a printed section of the award giving the parties notice of the filing of the award, and setting forth the specific date of the filing with the Clerk (December 5, 2008). Plaintiff admits receiving a copy of that award from the Court on December 10, 2008. Moreover, plaintiff admits receiving a second copy of the award, with the foregoing notice of filing, from the office of defendant's attorneys on December 17, 2008. Given such proof, the Court must conclude that plaintiff was given proper notice of filing not once, but twice. Plaintiff having failed to file or serve a timely demand for trial de novo, albeit due to an otherwise excusable law office mistake, the Court is powerless to grant it relief.

Finally, the court has considered, but rejects, the conclusion reached by Judge Fairgrieve in Liberty Queens Medical v. Travelers Indemnity Co., 194 Misc 2d 628, 629 (Dist. Ct. 2003), that "a sworn affidavit of mailing is required to start a party's time to file a trial de novo pursuant to 28 NYCRR §28.12."At least in circumstances, like those presented here, where the movant admits receiving two mailed copies of the award, with the required notice of filing endorsed thereon by the Clerk, the presence or absence of an affidavit of mailing is irrelevant.

SO ORDERED:

DISTRICT COURT JUDGE

Dated: July 20, 2009

CC:Israel, Israel & Purdy, LLP

Law Office of Robert P. Tusa, Esq.

MAC:ju