Opinion
23442
February 14, 2003.
Peter J. Creedon Associates for defendant.
Israel Israel, LLP, for plaintiff.
Upon a review of all the papers, 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 28 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, Esqs., 146 Misc.2d 553, 558 N.Y.S.2d 439 (App. Term, 9th 10th Jud. Dists., 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. InGordon, 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 NYC Medical Neurological Off, P.C. a/a/o Veronica Barek v. Allstate Insurance Co., (3rd Dist., Nassau County, No. 2460/1999, Judge Miller, November 12, 2001), that unsworn proof of service (mailing)is sufficient to commence the time for a party to file a trial de novo. This court specifically rules 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.
For the foregoing reasons, defendant's motion is granted.
So Ordered.