Opinion
02-14-2003
LIBERTY QUEENS MEDICAL, P.C., as Assignee of Luis SALCEDO, Plaintiff, v. TRAVELERS INDEMNITY COMPANY, Defendant.
Peter J. Creedon & Associates for defendant. Israel & Israel, LLP, for plaintiff.
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." This 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.