Ameritel Mgt. Inc. v Tanvir

[*1] Ameritel Mgt. Inc. v Tanvir 2013 NY Slip Op 51233(U) Decided on July 12, 2013 Supreme Court, Kings County Schmidt, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2013
Supreme Court, Kings County

Ameritel Management Inc., Plaintiff,

against

Shahid Tanvir, Defendant.



500330/12



Plaintiff's Attorney: Peter Levine, Esq., 99 Park Avenue, Suite 330, New York, NY 10016

Defendant's Attorney: Pro Se defendant

David I. Schmidt, J.

Defendant Shahid Tanvir moves, pro se, for an order granting him leave to file a jury demand. Plaintiff Ameritel Management Inc. opposes the motion. At issue, is the timeliness of the demand, as well as defendant's right to a jury trial under the circumstances herein.

For the reasons that follow, the motion is denied.

I.Relevant Procedural History

Plaintiff commenced this action by filing a summons and complaint on February 21, 2012. The complaint alleges a single cause of action for breach of contract. On March 15, 2012, defendant served an answer, interposing four counterclaims. On March 22, 2012, plaintiff served and filed a note of issue, requesting a trial without a jury. Pursuant to CPLR 4102 (a), the deadline for defendant to file a jury demand was April 11, 2012. However, defendant did not file such demand. Between March 28, 2012 and April 22, 2013, defendant made numerous motions, including to change venue, to vacate the note of issue, for dismissal and for summary judgment. These motions were all denied. On May 21, 2013, more than a year after the filing of the note of issue, defendant served the instant "motion for Jury Trial Demand."[FN1]

II.Discussion

Plaintiff opposes the motion based on two arguments. First, plaintiff contends that, pursuant to CPLR 4102 (a), the deadline for filing a jury trial demand expired more than a year ago, and defendant has failed to show that his failure to timely file a jury trial demand was the result of either inadvertence or other excusable conduct. Second, plaintiff asserts that, pursuant [*2]to CPLR 4102 (c), defendant waived the right to a jury trial by interposing counterclaims of an equitable nature related to the breach of contract cause of action alleged in the complaint.

CPLR 4102 (a) provides, in relevant part, that "[a]ny party served with a note of issue not containing such a demand may demand a trial by jury by serving upon each party a demand for a trial by jury and filing such demand in the office where the note of issue was filed within fifteen days after service of the note of issue (emphasis added)." Nevertheless, pursuant to CPLR 4102 (e), "[t]he court may relieve a party from the effect of failing to comply with this section if no undue prejudice to the rights of another party would result." Additionally, "[a] motion pursuant to CPLR 4102 (e) for an extension of time to file a demand for a jury trial must be based upon a factual showing that the earlier waiver of that right was the result of either inadvertence or other excusable conduct indicating a lack of intention to waive such right." Skelly v Sachem Cent. School Dist., 309 AD2d 917, 918 (2d Dept 2003) (citations omitted).

In the present case, defendant's papers do not adequately explain why he waited thirteen months to file a demand for a jury trial. Moreover, there is nothing in defendant's submissions that indicates that his waiver of his right to a jury trial was the result of inadvertence or other excusable conduct — an omission that is fatal to defendant's late demand for a jury trial. See affidavit of Shahid Tanvir, sworn to May 21, 2013, ¶¶ 1-6; reply affidavit of Shahid Tanvir, sworn to June 6, 2013, ¶¶ 1-16. To the contrary, as the procedural history discussed above demonstrates, defendant has been engaged in regular motion practice during the intervening time. Consequently, the court finds that defendant's thirteen month delay constitutes an informed waiver of his right to a jury trial.[FN2] See e.g. L.T.B. Const. Co. v Port of Oswego Auth., 154 AD2d 903, 903 (4th Dept 1989).

Though plaintiff's first argument is a sufficient reason to deny the motion, the court has also considered plaintiff's second argument, namely, that defendant, by interposing counterclaims of an equitable nature, waived his right to a jury trial, pursuant to CPLR 4102 (c). See Compact Electra Corp. v Connell, 46 AD2d 649, 650 (2d Dept 1974). However, nowhere in defendant's counterclaims (as opposed to his affidavit in support of summary judgment [see Levine affirmation, Ex. 12]) is there an express and unambiguous request for an equitable remedy. See Levine affirmation, Ex. 4. Accordingly, defendant's motion is denied solely on the ground that it is untimely.

Dated: July 12, 2013

ENTER:

______________________J.S.C. Footnotes

Footnote 1: Although it was in the court's power to default defendant for not appearing at the hearing on this motion, the court nevertheless reserved decision on the papers submitted.

Footnote 2: It is also worth noting that plaintiff represents that it would suffer prejudice if the motion was granted. Plaintiff acted under the assumption that, if necessary, there would be a bench trial. As such, plaintiff did not seek any discovery from defendant. Without discovery, plaintiff argues (and defendant does not dispute) that it will be at a disadvantage, should there be a jury trial, because it will have fewer means to predict and impeach defendant's testimony.