Rachel Lackowitz v City of Yonkers

Lackowitz v City of Yonkers 2006 NY Slip Op 03850 [29 AD3d 744] May 16, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006

Rachel Lackowitz, Respondent,
v
City of Yonkers, Appellant.

—[*1]

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), entered September 2, 2005, which denied its motion pursuant to CPLR 4102 (e) for leave to file a late jury demand.

Ordered that the order is affirmed, with costs.

The plaintiff served a note of issue which did not request a jury trial. The defendant did not thereafter timely request a jury trial, and thus, waived its right to a jury trial (see CPLR 4102 [a]). About seven months after being served with the note of issue, the defendant moved for leave to serve and file a demand for a jury trial. The Supreme Court providently denied the defendant's motion. The defendant's excuse that counsel inadvertently failed to notice that the plaintiff's note of issue did not request a jury trial was inadequate (see Fertik v Fertik, 264 AD2d 463, 464 [1999]). Adams, J.P., Goldstein, Fisher and Lifson, JJ., concur.