Yellow Book of NY v Macoul

[*1] Yellow Book of NY v Macoul 2004 NY Slip Op 50571(U) Decided on June 4, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 4, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO. 2003-1080 N C

YELLOW BOOK OF NY LP IND. & AS SUCCESSOR IN INTEREST TO YELLOW BOOK CO. INC., Respondent,

against

AVNER MACOUL NEW YORK MOVERS, INC., Appellants.

Appeal by defendants from so much of an order of the District Court, Nassau County (S. Fairgrieve, J.), dated March 27, 2003, as denied their motion for a jury trial.

Order unanimously affirmed without costs.

A party served with a notice of trial which does not contain a demand for a jury trial may obtain one by serving a demand within 10 days after service of the notice of trial (UDCA 1303 [a]). If a party fails to serve the demand within the applicable time
period, the right to a jury trial is waived (UDCA 1303 [b]). While a court may excuse a
party's failure to comply with UDCA 1303 (a), the party must show that there will be no
undue prejudice (UDCA 1303 [c]) and the decision as to whether to allow additional time in which to file a jury demand is within the sound discretion of the trial court (see Villalba v Citibank (S.D.), 271 AD2d 601 [2000]; Paternoster v Drehmer, 260 AD2d 867 [1999]).

In the case at bar, defendants conceded that they received a copy of the notice of trial on September 20, 2002 indicating that a non-jury trial had been scheduled for October 15, 2002. On October 3, 2002, defendants moved to strike the certificate of readiness and argued that it was premature because discovery had not been completed. Specifically, plaintiff failed to produce an [*2]employee for a deposition. By order dated November 18, 2002, the lower court denied defendants' motion to strike the certificate of readiness but ordered a deposition of plaintiff's employee for December 17, 2002. On December 19, 2002, defendants moved for a jury trial. Under the circumstances presented and in light of the delays in the litigation of this action caused
by defendants' exhaustive motion practice, we are of the opinion that the lower court's refusal to excuse defendants' failure to file a timely jury trial demand was not an abuse of discretion.

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Decision Date: June 04, 2004