Buonomo v. F. W. Woolworth Co.

This action, originally brought in the Supreme Court, New York County, was transferred to the Civil Court, New York County, pursuant to rule 660.21 (22 NYCRR 660.21) of the Rules of the Supreme Court, New York and Bronx Counties (see CPLR 325, subd [d]). In the Supreme Court, plaintiffs had demanded trial by jury and paid the jury demand fee. When the case was reached for trial in the Civil Court, plaintiffs sought to waive a jury and to proceed to trial nonjury. Defendants refused to participate in a nonjury trial when the trial court erroneously concluded that plaintiffs were entitled to waive the jury demand despite defendants’ objections (CPLR 4102, subd [c]; cf. Denner v Katz, 77 Misc 2d 53; see, also, Downing v Downing, 32 AD2d 350). Although no affidavit of merits was attached to the moving papers, the record before the court below adequately disclosed the existence of a meritorious defense, if established at the trial. In these circumstances, it was an improvident exercise of discretion to deny defendants’ motion to vacate the default judgment.

Order, entered December 31, 1974, reversed with $10 costs, motion granted, and jury trial directed.

Concur — Dudley, J. P., Fine and Frank, JJ.