Dutchess Med., P.C. v Allstate Ins. Co., 2013 NY Slip Op 23139 (City Ct. Poughkeepsie 2013)
“In a de novo hearing’, the judgment of the [trial] court is suspended and the reviewing court determines the case as though it originated in the reviewing court and gives no attention to the findings and judgment of the lower court except as they may be helpful to us in the reasoning.” Reck v. Reck, application for rehearing, 46 N.E. 2d 429, 430 (1942). A demand for trial de novo must be made “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 . . . ” [22 N.Y.C.R.R. §28.12], or the finding becomes final and binding.
Here, the Arbitrator’s decision was rendered on January 2, 2013. The decision was filed with this Court on February 20, 2013. The plaintiff has provided no evidence it served upon the defendant a notice of filing of the award with the Court Clerk. Therefore, defendant’s demand for trial de novo (filed on February 6, 2013) was in fact timely – as defendant’s time had not even begun to run. See, 22 N.Y.C.R.R. §28.12.”
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“Accompanied by its demand for a trial de novo, defendant filed a jury trial demand. The law provides that for the arbitration of certain claims, the rules must permit a jury trial de novo upon demand by any party following the determination of the arbitrators.C.P.L.R. §3405. Indeed, the rules, as promulgated, specifically provide both parties that the trial de novo be accompanied by a demand for a trial with or without a jury. N.Y.C.R..R. §28.12.
These particular statutes are noteworthy here because on August 14, 2012, plaintiff filed a notice of trial without a jury. And while this defendant had ten (10) days after service of plaintiff’s notice of trial to demand a jury trial [U.C.C.A. §1303(a)], defendant never made such a demand thereby waiving its right to a jury trial under U.C.C.A. §1303(b) – or seemingly waived it – as explained more fully below. Also see C.P.L.R. §4102.
However, while defendant may have waived his right to a jury trial under U.C.C.A. § 1303(b), both parties are awarded an encore with respect to their right to demand a jury trial when the matter is subject to mandatory arbitration. In particular, C.P.L.R. §3405 together with N.Y.C.R.R. §28.12 specifically address the right to demand a jury trial in arbitration cases, whereas U.C.C.A. §1303 has more of a general applicability for all actions in City Court. As such, the strict timing requirements to request a jury trial [pursuant toU.C.C.A. §1303] are rendered virtually obsolete when the matter is subject to mandatory arbitration. U.C.C.A. §1303. In short, while the time to demand a jury trial expired under U.C.C.A. §1303 ten (10) days after this plaintiff served its notice of trial, both parties’ right to demand a jury trial was revived when the arbitrator issued its final determination. C.P.L.R. §3405; N.Y.C.R.R. §28.12.”
