Zelvin v. Pagliocca

Appeal by plaintiff from an order of the Supreme Court, Westchester County, dated September 25, 1968, which granted defendants’ motion for leave to serve and file a jury demand nunc pro tunc. Order reversed, on the law and the facts, with $20 costs and disbursements, and motion denied. In our opinion, it was an improvident exercise of discretion to grant the leave requested. The application was not made until 4% months after plaintiff’s nonjury note of issue was served. In addition, there is no adequate factual showing that the failure of defendants’ former attorneys to demand a jury trial was inadvertent and that defendants had no intention to waive their right to a jury trial (Eastern Air Lines v. Town of Islip, 14 A D 2d 792; 7 Carmody-Wait 2d, N. Y. Prac., § 49.59). Christ, Acting P. J., Brennan, Rabin, Munder and Martus cello, JJ., concur.