Hyatte v. G.B.W. Glenwood Dental Administrators, Inc.

Appellate Division of the Supreme Court of New York

Hyatte v. G.B.W. Glenwood Dental Administrators, Inc.

8 A.D.3d 233, 777 N.Y.S.2d 686, 2004 N.Y. App. Div. LEXIS 7501

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 1, 2004

StatusPublished

Cited by4 cases

This text of 8 A.D.3d 233 (Hyatte v. G.B.W. Glenwood Dental Administrators, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hyatte v. G.B.W. Glenwood Dental Administrators, Inc., 8 A.D.3d 233, 777 N.Y.S.2d 686, 2004 N.Y. App. Div. LEXIS 7501 (N.Y. Ct. App. 2004).

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Opinion

In an action, inter alia, to recover damages for dental malpractice, the defendant Paul Evereet Vosswinkel appeals from an order of the Supreme Court, Kings County (M. Garson, J.), entered January 16, 2004, which granted the plaintiffs motion pursuant to CPLR 4102 (e) for an extension of time to file a demand for a jury trial.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, and the motion is denied.

A motion pursuant to CPLR 4102 (e) for an extension of time to file a demand for a jury trial must be based upon a factual showing that the earlier waiver of that right was the result of either inadvertence or other excusable conduct indicating a lack of intention to waive such a right (see Skelly v Sachem Cent. School Dist., 309 AD2d 917 [2003]; Tarantino v City of New York, 148 AD2d 601 [1989]). The Supreme Court improvidently exercised its discretion in granting the motion, in view of the plaintiffs failure to make an adequate factual showing that the filing of the note of issue affirmatively requesting a trial without a jury was inadvertent or the result of clerical error. Prudenti, P.J., Florio, H. Miller, Schmidt and Cozier, JJ., concur.

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In an action, inter alia, to recover damages for dental malpractice, the defendant Paul Evereet Vosswinkel appeals from an order of the Supreme Court, Kings County (M. Garson, J.), entered January 16, 2004, which granted the plaintiffs motion pursuant to CPLR 4102 (e) for an extension of time to file a demand for a jury trial.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, and the motion is denied.

A motion pursuant to CPLR 4102 (e) for an extension of time to file a demand for a jury trial must be based upon a factual showing that the earlier waiver of that right was the result of either inadvertence or other excusable conduct indicating a lack of intention to waive such a right (see Skelly v Sachem Cent. School Dist., 309 AD2d 917 [2003]; Tarantino v City of New York, 148 AD2d 601 [1989]). The Supreme Court improvidently exercised its discretion in granting the motion, in view of the plaintiffs failure to make an adequate factual showing that the filing of the note of issue affirmatively requesting a trial without a jury was inadvertent or the result of clerical error. Prudenti, P.J., Florio, H. Miller, Schmidt and Cozier, JJ., concur.

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Bluebook (online)

8 A.D.3d 233, 777 N.Y.S.2d 686, 2004 N.Y. App. Div. LEXIS 7501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hyatte-v-gbw-glenwood-dental-administrators-inc-nyappdiv-2004.

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