In Phillip v. Lancman (7556/11, NYLJ 1202635385724, at 1, Sup., Kings, decided December 19, 2013), the facts are as follows: the plaintiffs served a summons and complaint on April 1, 2011; on June 3, 2011, the defendant served an answer with affirmative defenses; on November 19, 2012, the plaintiff served and filed a note of issue, requesting a trial without a jury; and on JUne 28, 2013, the defendant made until June 28 a motion requesting permission to request a jury (as the defendant failed to timely do so pursuant to the CPLR, which requires one to request a jury no later than 15 days after the filing of the note of issue).
In opposing the defendant's motion, the plaintiffs note, among other things, that the statutory deadline for
filing a jury trial demand expired more than seven months ago, and that the plaintiffs would be unduly prejudiced if the defendant was permitted to demand a
jury trial because the infant plaintiff and plaintiff's counsel have
been preparing for a trial based upon the assumption that it would be a
non-jury trial. In reply, the defendant reiterates and argues, among other things, that the failure to timely file a jury
demand was due to the inadvertence of counsel, and that
there would be no prejudice to plaintiffs because there have been
settlement discussions and a scheduled mediation.
The Kings County Supreme Court denied the defendant's motion, citing CPLR 4102 (a), which states that "[a]ny party served with
a note of issue not containing such a demand may demand a trial by jury
by serving upon each party a demand for a trial by jury and filing such
demand in the office where the note of issue was filed within fifteen days after service of the note of issue." The Court also held the following: "[h]ere, the extent of defendant's delay in seeking the requested relief - over 7 months - weighs heavily against a finding of excusable conduct...[f]urthermore, the Second Department has held that a defendant's
explanation that he or she failed to realize that the note of issue was
filed with a request for a non-jury trial (as defendant herein claims)
is an inadequate excuse...[c]onsequently, under the circumstances presented herein,
defendant has failed to make an adequate factual showing that her failure to demand a jury trial was inadvertent. Accordingly, the motion is denied."
Salvatore R. Marino, Esq.