Citibank (South Dakota), N.A. v Boyce

[*1] Citibank (South Dakota), N.A. v Boyce 2014 NY Slip Op 50981(U) Decided on June 13, 2014 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 13, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and GARGUILO, JJ.
2013-1063 S C

Citibank (South Dakota), N.A., Respondent,

against

Heather Boyce Also Known as HEATHER GREENIDGE, Appellant.

Appeal from an order of the District Court of Suffolk County, Second District (David A. Morris, J.), dated April 12, 2013. The order denied defendant's motion for leave to file a late demand for a trial de novo.

ORDERED that, on the court's own motion, the notice of appeal filed May 10, 2013, which contains an inaccurate description of the order appealed from, is deemed a valid notice of appeal from the order dated April 12, 2013 (see CPLR 5520 [c]); and it is further,

ORDERED that the order dated April 12, 2013 is affirmed, without costs.

Following mandatory arbitration (see Rules of the Chief Judge [22 NYCRR] part 28) in this action based on a breach of contract and an account stated, defendant moved for leave to file a late demand for a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12). By order dated April 12, 2013, the District Court denied the motion.

As defendant failed to either serve or file a timely demand for a trial de novo, her motion was properly denied, since "[t]he time period to serve and file a demand for a trial de novo is not extendable" (U.S. Building and Design Inc. v Melia, 2003 NY Slip Op 50847[U], *1 [App Term, 9th & 10th Jud Dists 2003]; see Rules of the Chief Judge [22 NYCRR] § 28.12 [b]; Chase v Scalici, 97 AD2d 25 [1983]; Pruzan v Levine, 18 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2007]).

We note that we do not consider those factual assertions made, or exhibits submitted, to this court which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the order is affirmed.

Iannacci, J.P., Marano and Garguilo, JJ., concur.

Decision Date: June 13, 2014