Manuel Rial v Larry Lee

Rial v Lee 2006 NY Slip Op 04822 [30 AD3d 499] Decided on June 13, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 13, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ROBERT W. SCHMIDT, J.P.
STEPHEN G. CRANE
GABRIEL M. KRAUSMAN
PETER B. SKELOS
ROBERT J. LUNN, JJ.
2005-11633 DECISION & ORDER

[*1]Manuel Rial, et al., respondents,

v

Larry Lee, et al., appellants. (Index Nos. 23472/03)




Gold, Stewart, Kravatz & Stone, LLP, Westbury, N.Y. (Jeffrey
B. Gold of counsel), and Dubow & Smith, Bronx, N.Y., for
appellants (one brief filed).
Robert G. Schacht, PLLC, Staten Island, N.Y., for
respondents.

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 "[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, 8 AD3d 233;
Skelly v Sachem Cent. School Dist., 309 AD2d 917, 918; Behrmann v Heinz Pet Prods., 215 AD2d 619; cf. Breezy Point Coop. v Young, 234 AD2d 410).
SCHMIDT, J.P., CRANE, KRAUSMAN, SKELOS and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court