Frank v. Gessel

In a negligence action to recover damages for personal injuries, etc., Charles Gessel appeals from an order of the Supreme Court, Rockland County (Gagliardi, J.), entered September 14, 1984, which denied his motion for leave to serve a jury demand nunc pro tunc and to renew his prior cross motion to transfer the action from the Nonjury Calendar to the Jury Calendar. Appeal dismissed, with costs. Appellant’s motion was in reality a motion to reargue since no new matter was presented which was unavailable to him in connection with his prior cross motion, which was denied (see, Galaxy Export v Bedford Textile Prods., 89 ÁD2d 576; Erlich v Erlich, 80 AD2d 882). Therefore, the appeal must be dismissed. In any event, were we to reach the merits we would hold that the denial of the application to transfer the case to the Jury Calendar was not an abuse of discretion. Titone, J. P., Bracken, Weinstein and Niehoff, JJ., concur.