Tanger v Ferrer

Tanger v Ferrer 2012 NY Slip Op 07879 Decided on November 20, 2012 Appellate Division, First 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 November 20, 2012
Tom, J.P., Andrias, Saxe, Acosta, Freedman, JJ.
8614 116838/05

[*1]Steven Tanger, Plaintiff-Appellant,

v

Alfred Ferrer III, et al., Defendants-Respondents.




Brown & Whalen, P.C., New York (Rodney A. Brown of
counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York
(Patrick J. Lawless of counsel), for respondents.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered March 1, 2012, which granted defendants' motion for leave to serve a demand for a jury trial nunc pro tunc, and denied plaintiff's motion to strike the jury demand and for sanctions, unanimously affirmed, without costs.

Defendants established that their failure to timely serve a jury demand was unintentional, and plaintiff failed to demonstrate any prejudice arising from the delay (see CPLR 4102[a], [e]; Ossory Trading v Geldermann, Inc., 200 AD2d 423 [1st Dept 1994]). Defendants' lead counsel affirmed that he simply failed to notice plaintiff's request for a nonjury trial in the note of issue, because he was focused on reviewing the voluminous case file to insure that discovery was complete. To the extent plaintiff argues that he will be prejudiced by the glimpse defendants were afforded into his trial strategy during the parties' mediation, which he says was based on the understanding that a nonjury trial would follow if mediation failed, we find that he has not demonstrated such prejudice. Moreover, at the time of defendants' motion, the parties were contemplating continued mediation and no trial date had been scheduled; as the motion court observed, plaintiff will have adequate time to prepare for trial.

Defendants' conduct does not rise to the level of frivolous conduct as defined in 22 [*2]NYCRR 130-1.1(c). Moreover, we note that the motion court awarded costs to plaintiff.

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 20, 2012

CLERK