Behrmann v. Heinz Pet Products

215 A.D.2d 619, 628 N.Y.S.2d 509, 1995 N.Y. App. Div. LEXIS 5452

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1995
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), entered May 2, 1994, which granted the plaintiff’s motion for leave to file a late demand for a trial by jury.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

The Supreme Court improvidently exercised its discretion in granting the plaintiff leave to file a late jury demand. The plaintiff failed to make an adequate factual showing that the specific designation of a nonjury trial on her note of issue was the result of inadvertence or other excusable conduct and that she did not intend to waive her right to a jury trial (see, Tarantino v City of New York, 148 AD2d 601; Joseph v Exxon Corp., 83 AD2d 549; Brigando v Grumman Aerospace Corp., 78 AD2d 865). Balletta, J. P., Copertino, Altman and Goldstein, JJ., concur.