Rosenbaum v. Schlossman

72 A.D.3d 623, 898 N.Y.S.2d 851

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 2010
• Status: Published

Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 30, 2009, which denied defendants’ motion to vacate the note of issue, unanimously affirmed, without costs. Order, same court, Justice and entry date, which denied defendants’ motion to stay a scheduled nonjury trial of this matter and compel the Clerk to accept a jury demand, unanimously modified, on the facts, to direct the Clerk to accept the jury demand nunc pro tunc, and, in view of the interim stay of trial previously ordered by this Court, the remainder of the appeal from said order unanimously dismissed as academic, without costs.

Defendants should be permitted to serve and file a late jury demand given that the lateness, by only five days, was due in part to the late filing of the note of issue, and also given no intention by defendants to waive a jury trial, a prompt motion by defendants to be relieved of their default in timely filing a jury demand, and no prejudice to plaintiff caused by the late jury demand (see A.S.L. Enters. v Venus Labs., 264 AD2d 372, 373 [1999]). Defendants’ motion to vacate the note of issue was properly denied where defendants had received copies of plaintiffs letter to the court requesting the court’s issuance of a written order memorializing a prior oral order extending the time to file a note of issue, but did not object to the requested relief or inform the court, at that time, of their view that disclosure was incomplete (22 NYCRR 202.21 [d]). We have considered and rejected defendants’ remaining contention. Concur—Nardelli, J.P., McGuire, Acosta, Freedman and Román, JJ.