Rial v. Lee

In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated November 9, 2005, as granted the plaintiffs’ motion for leave to file a late demand for a jury trial. Ordered that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and the motion is denied. The plaintiffs failed to demonstrate that their affirmative request in their note of issue for a a[t]rial without jury” was inadvertent or the result of clerical error. Accordingly, the Supreme Court improvidently exercised its discretion in granting the motion for leave to file a late demand for a trial by jury (see CPLR 4102 [a], [e]; Hyatte v G.B.W. Glenwood Dental Adm’rs, Inc., 8 AD3d 233 [2004]; Skelly v Sachem Cent. School Dist., 309 AD2d 917, 918 [2003]; Behrmann v Heinz Pet Prods., 215 AD2d 619 [1995]; cf. Breezy Point Coop. v Young, 234 AD2d 410 [1996]). Schmidt, J.E, Crane, Krausman, Skelos and Lunn, JJ., concur.