Opinion
February 17, 1972
Order, Supreme Court, New York County, entered on November 16, 1970, denying petitioner's motion to stay arbitration, unanimously affirmed. Respondents shall recover of appellant $30 costs and disbursements of this appeal. Special Term erred in finding that "this proceeding was sought to be commenced by service by ordinary mail on the claimants and their counsel" and, in concluding, based on such finding, that there was a failure to comply with the requirements of CPLR 7503 (subd. [c]). The record demonstrates that service of the motion to stay arbitration was made upon both claimants by certified mail, return receipt requested, as provided for in CPLR 7503 (subd. [c]). Such service, alone, was sufficient and the fact that claimants' attorney was served by ordinary mail is of no significance, since any service upon him, under the circumstances, was unnecessary. However, the petition in support of this application is devoid of any evidentiary facts whatsoever warranting a hearing on the issue of validity of disclaimer. "In short, MVAIC has not sustained its burden of tendering a factual issue requiring a trial. It has rested its position on a conclusory presentation, when it should have disclosed sufficient evidentiary proof". ( Matter of Fuscaldo [ MVAIC], 24 A.D.2d 744, 745.)
Concur — Stevens, P.J., McGivern, Markewich, Nunez and Capozzoli, JJ.