Whether it is within the court's discretion to grant an extension to file and serve a [*2]notice of a trial de novo under 22 NYCRR §28.12?

The underlying action herein concerned denial of medical insurance benefits by the defendant, State Farm Insurance Company, to plaintiff, Upper East Side Surgical, PLLC assignee for Rita Munlyn. Defendant moved for summary judgment on the grounds that the plaintiff was not entitled to reimbursement because the plaintiff's facility was not listed with the New York State Workers Compensation Board and, therefore, no prevailing fee schedule could be discerned for reimbursement. The trial court denied the defendant's motion and found instead that a triable issue existed regarding how a prevailing fee is determined when New York State insurance law has failed to establish a fee schedule applicable to the provider.

The case was noticed for trial and then sent to mandatory arbitration where a finding for the defendant was entered by the arbitrator. Subsequent to the arbitration ruling, either party, as long as they were not in default, had the option to request a trial de novo. Plaintiff contends that due to an alleged mistake in the plaintiff's internal electronic filing system, the case was designated as pending trial. Due to the alleged mistake, the plaintiff missed the statutory filing period and subsequently brought this action to request an extension of time to file the demand for a trial de novo.

Plaintiff argues that pursuant to 22 NYCRR §28.12, the court has the discretion to excuse a failure to file a demand for a trial de novo due to a failure to file as a result of a mistake or excusable neglect. The plaintiff contends that the error in his own electronic filing system is the basis upon which the court may grant an extension under its discretion to do so as a result of a mistake.

22 NYCRR §28.12(a) states:

"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."

§28.12(b) states: [*3]

"If the demandant either serves or files a timely demand for a trial de novo but neglects through mistake or excusable neglect to do one of those two acts within the time limited, the court where the action was commenced or, if the action was transferred, the court to which it was transferred, may grant an extension of time for curing the omission." (emphasis added)

A careful reading of §(b) demonstrates that the plain language of the statute directs that the court's discretion to grant an extension to the demand requirements may only be exercised if the demandant has completed at least one of the two required actions within the specified time frame. In other words, a demandant who files a request for a trial de novo within the required time frame but fails to serve the opposing party may apply to the court for an extension to serve. In the alternative, a demandant who timely serves but neglects to file a demand for a trial de novo may seek the court's approval for an extension to file.

The plaintiff admits to receipt of the Notice of Arbitration Award from this court which clearly states the deadline for filing a demand for a trail de novo and the service and filing requirements specified by §28.12(a) and (b). The plaintiff further admits that his error was not realized until November 2013, three months after the deadline for filing and service had expired.

Based on the foregoing facts, it is not within the court's power to grant plaintiff's motion. In Bronx Radiology, P.C. v. Allstate Ins. Co., 24 Misc 3d 1223(A), 897 N.Y.S.2d 668 where a similar fact pattern existed, the court noted the similarities between time limits for filing a demand for a trial de novo and a notice of appeal. The Allstate court stated that "courts lack discretion to extend either time limit." Bronx Radiology, P.C. v. Allstate Insurance Company, 24 Misc 3d 1223(A), 897 N.Y.S.2d 668. The court found it was powerless to grant the extension requested despite "an otherwise excusable law office mistake."

In the case at bar, the plaintiff received a copy of the Arbitration Award expressly stating the time frame and requirements for demanding a trial de novo. As in Allstate, this court is similarly bound by the statutory guidelines and is powerless to grant the relief requested to allow plaintiff to file for a trial de novo.

Plaintiff's motion is hereby denied.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:April 7, 2014