Fils v. Diener

Appellate Division of the Supreme Court of New York

Fils v. Diener

59 A.D.2d 522, 397 N.Y.S.2d 14, 1977 N.Y. App. Div. LEXIS 13303

Appellate Division of the Supreme Court of the State of New York·Decided August 1, 1977·Published·Cited by 3 cases

Opinion

In an action, inter alia, to recover damages due to the defendant’s alleged negligence in the prosecution of plaintiffs’ claims, defendant appeals from an order of the Supreme Court, Nassau County, dated November 30, 1976, which granted the plaintiffs’ motion for leave to serve and file a jury demand nunc pro tunc. Order reversed, with $50 costs and disbursements, and motion denied. In our opinion it was an abuse of discretion to grant the leave requested. The application was not made until five months after plaintiffs’ nonjury note of issue was served. The plaintiffs’ moving papers fail to set forth an adequate factual showing that the failure of the attorney to demand a jury trial was inadvertent and that they had no intention to waive their right to a jury trial (see Zelvin v Pagliocca, 32 AD2d 561; 7 Carmody-Wait 2d, NY Prac, § 49.59). Martuscello, J. P., Margett, Suozzi and O’Connor, JJ., concur.

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In an action, inter alia, to recover damages due to the defendant’s alleged negligence in the prosecution of plaintiffs’ claims, defendant appeals from an order of the Supreme Court, Nassau County, dated November 30, 1976, which granted the plaintiffs’ motion for leave to serve and file a jury demand nunc pro tunc. Order reversed, with $50 costs and disbursements, and motion denied. In our opinion it was an abuse of discretion to grant the leave requested. The application was not made until five months after plaintiffs’ nonjury note of issue was served. The plaintiffs’ moving papers fail to set forth an adequate factual showing that the failure of the attorney to demand a jury trial was inadvertent and that they had no intention to waive their right to a jury trial (see Zelvin v Pagliocca, 32 AD2d 561; 7 Carmody-Wait 2d, NY Prac, § 49.59). Martuscello, J. P., Margett, Suozzi and O’Connor, JJ., concur.

Fils v. Diener, 59 A.D.2d 522, 397 N.Y.S.2d 14, 1977 N.Y. App. Div. LEXIS 13303 (N.Y. Ct. App. 1977).

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