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

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.