Barr v. Raffe

102 A.D.2d 709, 476 N.Y.S.2d 558, 1984 N.Y. App. Div. LEXIS 18868

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1984
• Status: Published

Opinion

—Order, Supreme Court, New York County (Louis Grossman, J.), entered May 10, 1983, which granted plaintiffs’ motion to vacate defendant’s notice to admit, is unanimously affirmed, without costs. 11 Order, Supreme Court, New York County (Louis Grossman, J.), entered September 22, 1983, which, inter alia, granted plaintiffs’ motion to quash a subpoena duces tecum, is unanimously affirmed, without costs. K Order, Supreme Court, New York County (Louis Grossman, J.), entered January 4, 1984, which, inter alia, denied defendant’s motion to restore this action to the Jury Trial Calendar, is unanimously reversed, to the extent appealed from, on the law and the facts, defendant’s motion is granted and the action is restored to the Jury Calendar, without costs. 11 Plaintiffs instituted this action against defendant on his unconditional written guarantees to plaintiffs’ testator. After issue was joined, plaintiffs moved for summary judgment. This motion was, inter alia, partially granted, and the matter was set down for an assessment of damages, concerning attorney’s fees, costs and expenses. The defendant timely demanded a jury trial. Thereafter, Trial Term struck this demand because allegedly the defendant had defaulted in appearance when the assessment action was on the Trial Calendar. Our review of the record leads us to conclude that defendant’s failure to appear was excusable. Therefore, Trial Term abused its discretion. Defendant is “entitled to a trial by jury * * * [since this action is] for the recovery of money only” (Wheelock v Lee, 74 NY 495, 500; material in brackets added). Concur — Kupferman, J. P., Ross, Bloom, Milonas and Alexander, JJ.