Phillip v Lancman
Annotate this CaseDecided on December 19, 2013
Supreme Court, Kings County
Jason Phillip, an infant by his mother and natural Guardian, LAURA SAWNEY PHILLIP, and LAURA SAWNEY PHILLIP, Individually, Plaintiffs,
against
Ina Lancman, Defendant
7556/11
Plaintiffs' Attorney: Alyssa J. Held, Held, Held & Held, 6920 Bay Parkway, Brooklyn NY 11204, (718 236 8994)
Defendant's Attorney: Judith Elsherbini, Katz & Associates, 335 Adams Street, Suite 2701, Brooklyn NY 11201
David I. Schmidt, J.
In this personal injury action, defendant Ina Lancman moves for an order, pursuant to CPLR 4102 (e), granting her leave to serve and file a demand for a jury trial nunc pro tunc. Plaintiffs oppose the motion.
For the reasons that follow, the motion is denied.
I.Relevant Procedural History
Plaintiffs served the summons and complaint on April 1, 2011. On June 3, 2011, defendant served an answer with affirmative defenses. On November 19, 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 fifteen days after the filing of the note of issue. However, defendant did not file such demand.
The instant motion to serve and file a late jury demand nunc pro tunc is dated June 28, 2013, and was received by plaintiffs on July 5, 2013. As such, it comes approximately 7½ months after the statutory deadline has passed.
II.Discussion
In support of the motion, defendant's counsel represents that its office "inadvertently failed to note that there was no jury demand requested on the Note of Issue." See affirmation of Judith Elsherbini, dated June 28, 2013, ¶ 5.
In opposing the motion, plaintiffs note that the statutory deadline for filing a jury trial [*2]demand expired more than seven months ago. Plaintiffs additionally contend that defendant has not provided a sufficient factual basis for her assertion that her failure to timely file a jury trial demand was the result of inadvertence or other excusable conduct. In this regard, plaintiffs assert that the extent of defendant's support for the motion is little more than a general restatement of the legal standards, leaving the court without the means to test the legitimacy of the excuse. Plaintiffs also represent that they would be unduly prejudiced if defendant was permitted to demand a jury trial because the infant plaintiff and plaintiff's counsel have been preparing for a trial based upon the assumption that it would be a non-jury trial.
In reply, defendant reiterates that the failure to timely file a jury demand was due to the inadvertence of counsel. Responding to plaintiffs' argument that a factual basis for defendant's claim of inadvertence was not provided in the underlying motion papers, defendant's counsel adds: "[i]t is rare for a Plaintiff not to file a request for a Jury Trial unless the case is one of insignificant value or a property damage case where a value can be ascertained without the need of a jury. I would venture to say that over 95% of the Notes of Issue we receive, the plaintiff requests a Trial by Jury." See reply affirmation of Thomas G. Carton, dated October 18, 2013, ¶ 3. Defendant also maintains that there would be no prejudice to plaintiffs because there have been settlement discussions and a scheduled mediation.
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." 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).
Here, the extent of defendant's delay in seeking the requested relief — over 7 months — weighs heavily against a finding of excusable conduct. Compare Fils v Diener, 59 AD2d 522, 522 (2d Dept 1977) (reversing trial court's exercise of discretion to grant leave to file a late demand, noting, inter alia, the five month delay between the filing of the note of issue and the application); Zelvin v Pagliocca, 32 AD2d 561, 561 (2d Dept 1969) (reversing trial court's exercise of discretion to grant leave where there was a 4½ month delay); with Brooks v Brooks, 37 AD2d 835, 836 (2d Dept 1971) (relief granted when "at most" delay was 14 days); A.S.L. Enterprises, Inc. v Venus Laboratories, Inc., 264 AD2d 372, 372 (2d Dept 1999) (motion granted when defendant made a "prompt application to be relieved of their default" and no show of prejudice to plaintiff).
Furthermore, the Second Department has held that a defendant's explanation that he or she failed to realize that the note of issue was filed with a request for a non-jury trial (as defendant herein claims) is an inadequate excuse. See Lackowitz v City of Yonkers, 29 AD3d 744 (2d Dept 2006), citing Fertik v Fertik, 264 AD2d 463, 464 (2d Dept 1999) ("defendants' excuse that counsel inadvertently failed to notice that the plaintiff's note of issue requested a bench trial is inadequate"). Consequently, under the circumstances presented herein, defendant [*3]has failed to make an adequate factual showing that her failure to demand a jury trial was inadvertent.
Accordingly, the motion is denied.
The foregoing constitutes the decision and order of the court.
Dated: December 19, 2013
ENTER:
______________________J.S.C.
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