Jia Wang v. Chih Shien Kang

Order, Supreme Court, New York County (Richard Braun, J.), entered May 1, 2015, which, insofar as appealed from, denied plaintiffs motion to vacate the note of issue or, in the alternative, for a jury trial, unanimously affirmed, without costs.

Plaintiff brought this motion to vacate the note of issue on the basis that the case was not ready for trial some 15 months after the note of issue was filed, and, thus, the motion was untimely (see Schroeder v IESI NY Corp., 24 AD3d 180, 181 [1st Dept 2005]). Furthermore, plaintiff’s speculative and unsubstantiated claims of defendants’ forgery, spoliation, and obstructing discovery fail to meet the “stringent” standard of showing “unusual and unanticipated circumstances” subsequent to the filing of the note of issue that would otherwise justify granting the relief sought (id. [internal quotation marks omitted]).

Plaintiff failed to file a jury demand within 15 days of the filing of the note of issue, and has not provided an excuse for her failure to do so. As a result, she waived any right she may have had to a jury trial (see CPLR 4102 [a]; Med Part v Kingshridge Hgts. Care Ctr., Inc., 22 AD3d 260, 261 [1st Dept 2005]).

We have considered plaintiff’s remaining contentions, and find them unavailing.