Amitrano v. Notaro

In an action to recover damages for personal injuries, etc., the defendant appeals from (1) an order of the Supreme Court, Nassau County (Alpert, J.), dated September 30, 2003, which denied his motion for leave to serve and file a late jury demand, and (2) a judgment of the same court dated October 22, 2003, which, after a nonjury trial, is in favor of the plaintiffs Jeanette Bressant and William Bressant and against him in the principal sum of $85,000. [668] Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is affirmed; and it is further, Ordered that one bill of costs is awarded to the respondents. The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]). The Supreme Court providently exercised its discretion in denying the defendant’s motion for leave to serve and file a late jury demand (see CPLR 4102 [e]; Villalba v Citibank [S.D.], 271 AD2d 601 [2000]; Johnson v Town of Fishkill, 262 AD2d 532 [1999]). The motion was made over one year after service of the note of issue and was returnable on the day before trial (see Paternoster v Drehmer, 260 AD2d 867, 870 [1999]; Roosa v Roosa, 248 AD2d 858 [1998]). Smith, J.P., S. Miller, Adams, Rivera and Lifson, JJ., concur.