Keller v. Keller

66 A.D.2d 960, 411 N.Y.S.2d 701, 1978 N.Y. App. Div. LEXIS 14302

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1978
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered May 5, 1978 in Tompkins County, which denied defendant’s motion for an order relieving her of her failure to serve a timely demand for a jury trial. In this contested divorce action, defendant wife admittedly filed her demand for a jury trial more than one month late on April 9, 1978, and plaintiff husband objected to her demand. By order to show cause defendant thereupon moved, pursuant to CPLR 4102 (subd [e]), for relief from her tardy filing, and her request was denied by Special Term. This appeal followed. We hold that the order of Special Term should be affirmed. In its discretion the court may excuse a late filing, but only if no undue prejudice to the rights of another party would result (CPLR 4102, subd [e]). Here, it appears that plaintiff’s attorney, in reliance upon defendant’s failure to demand a jury trial within the statutorily prescribed time, made certain other trial commitments and that, as a result, the resolution of this case involving the custody of two young children would have been unjustifiably delayed had defendant’s motion been granted. Furthermore, defendant changed attorneys at about the same time that her time to demand a jury trial expired, and there is no adequate showing that her former attorney’s failure to demand a jury trial was inadvertent and not an intentional waiver of that right (cf. Fils v Diener, 59 AD2d 522; Zelvin v Pagliocca, 32 AD2d 561) in that there is no factual affidavit from either the defendant or her first attorney to support this argument. This omission is fatal to defendant’s late demand for a jury trial. Under these circumstances, the order appealed from should not be disturbed. Order affirmed, without costs. Sweeney, J. P., Kane, Staley, Jr., Main and Mikoll, JJ., concur.