SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Karen B. Rothenberg, J.), entered March 2, 2006. The order granted defendant’s motion to dismiss plaintiff’s action for failure to comply with a court-ordered examination before trial and denied plaintiff’s cross motion to vacate, renew and reargue the order of the same court (Sarah L. Krauss, J.), entered December 7, 2004, which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of compelling one of plaintiff’s employees to appear for an examination before trial.

Appeal from so much of the order as denied that branch of plaintiff’s cross motion which sought reargument dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for an order compelling plaintiff, plaintiff’s assignor and the assignor’s treating physician to appear for examinations before trial. In its reply papers, plaintiff did not oppose that branch of defendant’s cross motion which sought an order compelling depositions. By order entered December 7, 2004, the court denominated defendant’s cross motion as one seeking summary judgment as well as to compel examinations before trial, denied plaintiff’s motion for summary judgment, denied defendant summary [*2]judgment and granted, on default, defendant’s cross motion to the extent of compelling one of plaintiff’s employees with relevant knowledge to appear for an examination before trial within 60 days, provided that the defendant re-serve a deposition notice within 20 days of said order. Thereafter, defendant moved to dismiss the complaint on the ground that, on December 8, 2004, it had served plaintiff with a copy of the prior order with notice of entry and that on December 10, 2004, defendant served plaintiff with a notice to take deposition. However, plaintiff failed to produce an employee for the court-
ordered deposition. Plaintiff cross-moved to vacate the December 7, 2004 order and for reargument and renewal of said order. By order entered March 2, 2006, from which plaintiff now appeals, the court granted defendant’s motion to dismiss the complaint and denied plaintiff’s cross motion.While plaintiff is appealing from the branch of the order which denied its motion for reargument, no appeal lies from an order denying reargument (see Coque v Wildflower Estates Developers, Inc., 31 AD3d 484 [2006]). To the extent plaintiff is also appealing from the branch of the order which denied its motion seeking renewal, CPLR 2221 (e) (2) provides that a motion for leave to renew a prior motion must be based upon “new facts not offered on the prior motion that would change the prior determination” or must show “that there has been a change in the law that would change the prior determination.” Furthermore, the motion papers must contain a “reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). In the instant case, plaintiff did not proffer a reasonable justification for its failure to present the facts upon which its renewal motion was based to the motion court on its prior motion for summary judgment (see T & B Port Washington, Inc. v McDonough, 34 AD3d 785 [2006]; Renna v Gullo, 19 AD3d 472 [2005]). Accordingly, the branch of plaintiff’s motion seeking renewal was properly denied.

Furthermore, in order to vacate the December 7, 2004 order insofar as it granted defendant’s cross motion upon plaintiff’s default, plaintiff was required to demonstrate, inter alia, a reasonable excuse for its default (see Gironda v Katzen, 19 AD3d 644 [2005]; Liotti v Peace, 15 AD3d 452 [2005]; Abrams v City of New York, 13 AD3d 566 [2004]). Inasmuch as plaintiff failed to proffer a reasonable excuse as to why it did not oppose defendant’s cross motion seeking an order compelling examinations before trial, the lower court properly denied that branch of plaintiff’s cross motion seeking vacatur of the December 7, 2004 order.

Moreover, as noted by the Court of Appeals, “[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity” (Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). In the case at bar, the branch of defendant’s motion which sought to compel depositions was granted on default and since plaintiff failed to obtain a stay of said order, plaintiff was obligated to produce one of its employees for an examination before trial (id.). Plaintiff’s willful failure to produce an employee for the court-ordered deposition resulted in an additional motion by defendant to dismiss the complaint, thereby wasting scarce judicial resources, and such behavior cannot be tolerated (see Fair Price Med. Supply Corp. v
ELRAC Inc., 12 Misc 3d 126[A], 2006 NY Slip Op 50864[U] [App Term, 2d & 11th Jud Dists]). [*3]Accordingly, the order, insofar as reviewed, is affirmed.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Randy Sue Marber, J.), dated September 30, 2005, and from an order of the same court, entered February 22, 2006. The order dated September 30, 2005, insofar as appealed from, denied plaintiff’s motion for summary judgment. The order entered February 22, 2006 denied plaintiff’s motion to vacate the order dated September 30, 2006 and to renew plaintiff’s motion for summary judgment.

Appeal from order entered February 22, 2006 dismissed.

Order dated September 30, 2005, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. By order dated September 30, 2005, the court below denied the motion on the ground, inter alia, that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s corporate officer failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein. Plaintiff appeals from the denial of its motion for summary judgment. Plaintiff also appeals from the order entered February 22, 2006 which denied its motion to vacate the September 30, 2005 order and to renew [*2]its motion for summary judgment.

Since the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a proper foundation for the admissibility, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Fortune Med., P.C. v Allstate Ins. Co., ____ Misc 3d ____[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the order dated September 30, 2005 properly denied plaintiff’s motion for summary judgment.

To the extent plaintiff also appeals from the order entered February 22, 2006, plaintiff has raised no issue with respect thereto and, thus, said appeal is dismissed as abandoned.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered February 1, 2006. The order denied plaintiff’s renewed motion for leave to enter a default judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for an order granting it leave to enter a default judgment upon defendant’s failure to appear or answer the complaint. The motion was denied with leave to renew upon submission of a proper affidavit by plaintiff. Thereafter, plaintiff renewed its motion with what it deemed to be a sufficient affidavit. The motion court
again denied the motion, on the ground that plaintiff did not adequately establish submission of the claim forms. The instant appeal ensued.

CPLR 3215 (f) requires that upon any application for a default judgment, the applicant must, inter alia, file “proof of the facts constituting the claim, the default and the amount due by affidavit made by the party.” The affidavit in support of the motion must be made upon personal knowledge of the facts (see Fiorino v Yung Poon Yung, 281 AD2d 513 [2001]; Finnegan v Sheahan, 269 AD2d 491 [2000]) and must establish a prima facie case (Matter of Dyno v Rose, 260 AD2d 694 [1999]). If the court determines that the affidavit fails to establish a prima facie case, the applicant is not entitled to the requested relief, even on default (id. at 698). [*2]

In the instant action, the affidavit of plaintiff’s corporate officer, which plaintiff submitted on its renewed motion, was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s motion papers. Accordingly, plaintiff did not establish a prima facie case (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). In any event, even if the affidavit had laid a proper foundation for the admissibility of the annexed documents, the court below correctly found that plaintiff failed to establish that it submitted the claim forms to defendant (see Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50473[U] [App Term, 2d & 11th Jud Dists]; see also PDG Psychological P.C. v Progressive Cas. Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51432[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, since plaintiff did not demonstrate a prima facie entitlement to judgment as a matter of law, the court below properly denied plaintiff’s renewed motion for leave to enter a default judgment.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered October 27, 2005, deemed an appeal from a judgment entered on February 2, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 27, 2005 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $7,831.65.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s
counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s corporate officer failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The court below granted plaintiff’s motion for summary judgment and the instant appeal by defendant ensued. [*2]

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie
showing of its entitlement to summary judgment (see Dan Med., P.C. v New York
Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists, 2006]). Consequently, the judgment should be reversed, the order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied. Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered January 26, 2006. The order denied plaintiff’s motion for summary judgment

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s corporate officer failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [*2][App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered December 8, 2005, deemed an appeal from a judgment entered on January 5, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 8, 2005 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,354.

Judgment reversed without costs, order entered December 8, 2005 vacated, and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below granted the motion and the instant appeal by defendant ensued.

On appeal, defendant raises for the first time that the affidavit by plaintiff’s corporate officer, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. [*2]Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the judgment is reversed, the order entered December 8, 2005 is vacated, and plaintiff’s motion for summary judgment denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: March 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), dated December 6, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. The
court below denied the motion on the ground, inter alia, that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s corporate officer was legally insufficient. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New [*2]York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44,
2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered May 27, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment upon a claim seeking the sum of $1,061.63.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, affidavits by an employee of plaintiff and various documents annexed thereto. The affidavits executed by plaintiff’s employee stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. Defendant argued in opposition that plaintiff’s employee failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result plaintiff failed to establish a prima facie case. Plaintiff appeals from so much of an order as denied its motion for summary judgment upon a claim in the sum of $1,061.63.

Inasmuch as the affidavits submitted by plaintiff’s employee were insufficient to establish that said employee possessed personal knowledge of plaintiff’s business practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to [*2]plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v
New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

In view of the foregoing, we reach no other issue.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered October 24, 2005. The order partially granted defendant’s unopposed motion to compel disclosure and denied plaintiff’s cross motion for summary judgment.

Appeal from so much of the order as partially granted defendant’s motion to compel disclosure dismissed.

Order, insofar as reviewed, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for health care services rendered to its assignor. After defendant moved to compel disclosure, plaintiff cross-moved for summary judgment. Plaintiff did not address defendant’s motion to compel disclosure. By order entered October 24, 2005, the court below denied plaintiff’s cross motion and granted defendant’s motion to compel disclosure to the extent of requiring plaintiff to appear by a treating physician for an examination before trial. The instant appeal by plaintiff ensued.

On appeal, defendant raises for the first time that the affidavit by plaintiff’s corporate officer, submitted in support of the motion, failed to lay a proper foundation for the documents [*2]annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s cross motion for summary judgment was properly denied.

Since plaintiff failed to submit written opposition to defendant’s motion to compel disclosure, that branch of the order which granted defendant’s motion to the extent of requiring plaintiff to appear by a treating physician for an examination before trial was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s motion to compel disclosure is dismissed.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 26, 2007

Nassau Dist Ct

33512/02

Attorneys for

Plaintiff: Harold Solomon, Esq

Defendant: Ronald Lemberger, Esq.

Andrew M. Engel, J.

This action was commenced on or about September 12, 2002 seeking to recover no-fault first party benefits, in the sum of $2,625.23, for medical services allegedly provided by the Plaintiff to his Assignor. Issue was joined on or about September 30, 2002.

On February 21, 2006, following the filing of a Notice of Trial by the Plaintiff, the parties participated in a mandatory arbitration pursuant to the Rules of the Chief Judge, 22 N.Y.C.R.R. Part 28. That proceeding resulted in an award in the Plaintiff’s favor, against the Defendant, in the sum of $3,150.23, inclusive of attorney’s fees, together with interest from September 12, 2002. The arbitration award was signed and dated by the Commissioner of Arbitration and forwarded to the Clerk of the Court on March 3, 2006.

Based thereon, on August 18, 2006, a judgment was entered against the Defendant in the total sum of $6,293.74. On October 30, 2006 the Plaintiff served, by mail, a copy of this judgment upon the Defendant, along with a Notice of Entry and a copy of the arbitration award.

On November 30, 2006 the Defendant attempted to file a demand for a trial de novo. This demand was rejected by the Clerk of the Court on December 1, 2006 as untimely. The Defendant now moves for an order compelling the acceptance of its demand and staying all efforts to enforce the judgment entered herein. The Plaintiff opposes the motion.

The Defendant alleges that the service of the judgment and the arbitration award by the Plaintiff, on October 30, 2006, was “the first and only notice by plaintiff of the award, [and] defendant timely filed its demand for trial de novo.” (Meade Affirmation 12/27/06, ¶ 3) The Defendant does not indicate when, if at all, it was served with notice of the filing of the arbitration award by the Commissioner of Arbitration. [*2]

The Defendant argues that the Clerk’s rejection of its Demand for a Trial De Novo violates its right to a trial by jury. According to the Defendant, measuring its time within which to file a demand for a trial de novo from service of notice of filing of the award by the Commissioner of Arbitration, rather than from service by a party, is in direct conflict with the Civil Practice Law and Rules and inconsistent with the Rules of the Chief Judge themselves, rendering these rules unconstitutional. The Defendant is mistaken.

The Rules of the Chief Judge, 22 N.Y.C.R.R. Part 28, authorized by CPLR § 3405, establish the procedures to be followed for the disposition of civil suits, for a sum of money only, by arbitration.

In pertinent part, these rules provide:

Section 28.11 Award. (a) The award shall be signed by the panel of arbitrators or at least a majority of them. The chairperson shall file a report and the award with the commissioner within 20 days after the hearing, and mail or deliver copies thereof to the parties or their counsel. The commissioner shall mark his files accordingly, file the original with the clerk of the court where the action was commenced or, if the action was transferred, the court to which it was transferred, and notify the parties of such filing.

Section 28.12 Trial de novo.

(a) Demand may be made by any party not in default for a trial de novo in the court where the action was commenced or, if the action was transferred, the court to which it was transferred, with or without a jury. Any party who is not in default, within 30 days after service upon such party of the notice of filing of the award with the appropriate court clerk, or if service is by mail, within 35 days of such service, may file with the clerk of the court where the award was filed and serve upon all adverse parties a demand for a trial de novo.

In challenging the constitutionality of these rules, the Defendant bears a heavy burden and must overcome a strong presumption of constitutionality by proof beyond a reasonable doubt. See: Hotel Dorset Company v. Trust for Cultural Resouces of City of New York, 46 NY2d 358, 413 NYS2d 357 (1978); Local Government Assistance Corporation v. Sales Tax Asset Receivable Corporation, 2 NY3d 524, 780 NYS2d 507 (2004).

Contrary to the Defendant’s argument, that the Rules of the Chief Judge deprive it of its constitutional right to a trial by jury, the authorizing statute, CPLR § 3405, specifically provides, “Such rules must permit a jury trial de novo upon demand by any party following the determination of the arbitrators ….” It is this very provision which has been determined to save the mandatory arbitration provisions from constitutional infirmity. Nuro Transportation v. Judges of the Civil Court of the City of New York for the County of Queens, 95 AD2d 779, 463 NYS2d 264 (2nd Dept. 1983); Penney v. Elmira Professional Communications, Inc., 131 AD2d 938, 516 NYS2d 533 (3rd Dept. 1987)

The Defendant’s argument, that the notice provisions of 22 N.Y.C.R.R. §§ 28.11 and [*3]28.12, which permit the Commissioner of Arbitration to serve the notice of filing of the award, as the trigger for the time within which a demand for a trial de novo must be served, are in contravention of the service and/or notice provisions of the Civil Practice Law and Rules is similarly without merit. A conflict between the CPLR and the Rules of the Chief Judge simply does not exist. The disclosure provisions of CPLR Article 31, which require such demands to be served by a party; or the provisions of CPLR § 2220, which address the filing and service of orders; or the provisions of CPLR §§ 2221 and 5513, which measure the time within which a motion to reargue or renew may be made or a notice of appeal may be filed from the service of the order in question by a party, upon which the Defendant relies, have nothing whatsoever to do with the Rules of the Chief Judge for mandatory arbitration.

Plump v. Harth, 52 Misc 2d 787, 276 NYS2d 929 (Dist. Ct. Nassau Co. 1966), upon which the Defendant relies, provides a good comparison. In Plump, there existed a direct conflict between the provisions of CPLR § 3216 and then Rule 14 of the Rules of the Nassau County District Court. The former required notice be given to a plaintiff, demanding that a note of issue be filed or face dismissal; the later provided for an automatic dismissal, without notice. In contrast, the CPLR provisions upon which the Defendant relies herein are neither in direct nor indirect conflict with the arbitration provisions, which are specifically authorized by CPLR § 3405. Moreover, the CPLR provisions upon which the Defendant relies are statutes of general applicability, whereas CPLR § 3405 is one of limited application, limited to mandatory arbitration proceedings, and takes precedence over the general statutes upon which the Defendant relies. Seminerio Associates Inc. v. Brownstone Solutions, Inc., 165 Misc 2d 646, 629 NYS2d 615 (Civ. Ct. NY Co. 1995)

The Defendant’s additional argument that the arbitration rules are internally inconsistent, forbidding the arbitrator from being a witness at a trial de novo, 22 N.Y.C.R.R.§ 28.12(d), is also without merit. Contrary to the Defendant’s representation, the arbitrator has no responsibility for the service of the notice of filing of the award. The rule provides that such service shall be performed by the commissioner. 22 N.Y.C.R.R.§ 28.11(a) There is no reason for the arbitrator to be called as a witness on such an issue. Moreover, 22 N.Y.C.R.R.§ 28.12(d) only proscribes the calling of the arbitrator as a witness “at the trial de novo.”

The court notes that an earlier version of 22 N.Y.C.R.R.§ 28.12 was subject to constitutional challenge due to the fact that a party’s time to file for a trial de novo began to run upon the filing of the award with the appropriate clerk, without notice of such filing being provided to the parties. See: Perry v. Aamco Transmissions, 126 Misc 2d 545, 481 NYS2d 1007 (City Ct. Rochester, 1984) Those due process impediments, however, were cured by the amendment to Section 28.12, adopted by the Chief Judge on April 24, 1985, providing for service of notice of filing of the award and for a parties’ time to demand a trial de novo to run from such service. Greenberg v. Brooks Woolen Co., 141 Misc 2d 770, 534 NYS2d 106 (Civ. Ct. NY Co. 1988); Gordon v. Siben & Siben, 146 Misc 2d 553, 558 NYS2d 439 (App. Term 9th and 10th Jud. Dists. 1990) Accordingly, the court finds the Defendant’s due process arguments to be wholly without merit.

The above notwithstanding, the question remains, whether the Defendant’s demand for a trial de novo herein was timely. The Commissioner of Arbitration being authorized, by rule, to serve the notice of filing of the award, such service may be made by the Commissioner or by a party. Greenberg v. Brooks Woolen Co., supra . To be timely, where service is made by mail, the demand for a trial de novo must be served and filed within thirty-five (35) days thereof. 22 N.Y.C.R.R.§ 28.12(a)

While the Plaintiff, in opposing the motion, indicates that he received a copy of the [*4]arbitrator’s decision in the mail “no later than August 15, 2006” (Solomon Affirmation 2/6/07), and assumes that same was mailed to the Defendant, there is nothing in this record which indicates that the Commissioner of Arbitration ever mailed a notice of filing of the award to the Defendant. The arbitration award indicates that the award was filed on March 3, 2006. There is no indication, however, either on the face of the award, the Notice of Filing of Award or anywhere in the records of the Commissioner or the court to indicate if and/or when the notice of filing was served upon the parties. In the absence of an affidavit of service, demonstrating that the Defendant was served pursuant to 22 N.Y.C.R.R.§ 28.11(a), Liberty Queens Medical, P.C. v. Travelers Indemnity Company, 194 Misc 2d 628, 756 NYS2d 407 (Dist. Ct. Nassau Co. 2003), or, at that very least, certified documents sufficient to establish service by the Commissioner, Gordon v. Siben & Siben, supra ., the Defendant’s time to serve and file a demand for a trial de novo did not begin to run until service was made by the Plaintiff on October 30, 2006.

Such service having been made by mail, the Defendant had until December 4, 2006 to file its demand. Under the circumstances, the Defendant’s attempted filing on November 30, 2006 was timely and should have been accepted by the clerk. For this reason, the Defendant’s motion is granted; and, it is hereby

ORDERED, that the Defendant shall file and serve a copy of this order, with a copy of its demand for a trial de novo within thirty (30) days of the service of this order with Notice of Entry; and, it is further

ORDERED, that upon filing its demand for a trial de novo the Defendant shall pay to the court clerk the amount of the fees payable to the arbitrator, pursuant to 22 N.Y.C.R.R.§ 28.12(c).

All other matters not decided herein are hereby denied

This constitutes the decision and order of this court.

Dated: Hempstead, New York

March 23, 2007

___________________________

ANDREW M. ENGEL

J.D.C.