Desmond v. Socha

46 A.D.2d 706, 360 N.Y.S.2d 90, 1974 N.Y. App. Div. LEXIS 3865

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 1974
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered February 19, 1974 in Schenectady County, which denied a motion for leave to file a demand for a trial by jury nunc pro tunc as of December 21, 1972. In this action to recover attorney’s fees allegedly due and owing, issue was joined on November 28, 1972, and a note of issue for a nonjury trial was served and filed on December 21, 1972 noticing the case for the February 1973 Trial Term. The ease was designated as No. 31 on the June 1973 Non-Jury Calendar and a pretrial conference was held at that term. At the opening of the December 1973 Non-Jury Term, the case was marked ready for trial and another pretrial conference was held without success. By order to show cause dated December 10,, 1973, defendant moved for leave to file a demand for a trial by jury nunc pro tune as of December 21, 1972 on the ground that his attorney inadvertently did not notice that the note of issue provided for a trial without a jury and did not realize that this was the case until after the pretrial conference on December 6, 1973. This excuse offered by defendant’s attorney for the delay in making his motion about one year after the note of issue was served and filed was inadequate. A transfer from the Non-Jury to the Jury Calendar at this time would also be prejudicial to the plaintiff in that such transfer would result in delaying the trial. (Eastern Air Lines v. Town of Islip, 14 A D 2d 792.) Special Term properly determined that it would have been an improvident exercise of discretion to grant the leave requested. (Zelvin v. Paglioeca, 32 A D 2d 561.) Order affirmed, with costs. Herlihy, P. J., Staley, Jr., Greenblott, Main and Reynolds, JJ., concur.