Dokoudovsky v. 21043 Corp.

— Order, Supreme Court, New York County (Myriam J. Altman, J.), entered on or about June 22, 1992, granting defendants’ motion to strike plaintiffs jury demand, unanimously reversed, on the law, with costs and disbursements, and the motion denied.

It was error to make a factual finding of non-service on the basis of conflicting claims contained in the moving and answering papers with respect to the service of a note of issue containing a jury demand. The forum for the resolution of such claims is a traverse. In any event, in the face of a duly filed affidavit of service by mail, and the presumption it carries of a proper mailing (see, Engel v Lichterman, 62 NY2d 943), counsel’s affirmation acknowledging receipt of the contemporaneously prepared Preliminary Conference Statement but disclaiming, in conclusory fashion, receipt of the note of issue — "No note of issue was in the envelope or separately received” — was insufficient even to raise a controversy (see, supra, at 945).

The motion should have been denied. Concur — Sullivan, J. P., Milonas, Kupferman and Ross JJ.