Joseph v. Exxon Corp.

83 A.D.2d 549, 441 N.Y.S.2d 29, 1981 N.Y. App. Div. LEXIS 14836

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1981
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries and property damages, plaintiffs appeal from an order of the Supreme Court, Kings County (Monteleone, J.), dated January 19, 1981, which denied their motion for leave to file a demand for a jury trial, nunc pro tunc. Order affirmed, with $50 costs and disbursements. Special Term properly exercised its discretion in denying plaintiffs’ motion in view of their failure, by an adequate factual showing, to demonstrate that the acts of their attorney in placing an “X” mark in the box on the note of issue before the words “Trial without jury”, and filing same without payment of a jury fee, were inadvertent. Furthermore, there was an inordinate delay, of over three months, before plaintiffs moved, on the eve of trial, for leave to file a jury demand nunc pro tunc (see Zelvin v Pagliocca, 32 AD2d 561; Fils v Diener, 59 AD2d 522). Mollen, P.J., Mangano, Gibbons and Margett, JJ., concur.