| Camilleri v Pena |
| 2008 NY Slip Op 52546(U) [21 Misc 3d 145(A)] |
| Decided on December 22, 2008 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Landlord, as limited by his brief, appeals from 1) so much of an order of the Civil Court of
the City of New York, New York County (Michelle D. Schreiber, J.), dated May 9, 2006, as
denied his motion to strike a jury demand filed by tenant in a holdover summary proceeding, and
2) an order, same court (Gary F. Marton, J.), dated April 11, 2007, which denied landlord's
motion to renew the aforesaid order.
PER CURIAM.
Order (Michelle D. Schreiber, J.), dated May 9, 2006, insofar as appealed from, and order (Gary F. Marton, J.), dated April 11, 2007, affirmed, with one bill of $10 costs.
Landlord's motion to strike the jury demand timely interposed by tenant was properly denied,
in the absence of any showing that the original stabilized lease agreement contained an
enforceable jury waiver clause. Neither party has produced the original lease, which dates back
roughly three decades, and there is no evidentiary basis in the record to support a conclusion that
the lease contained a jury waiver. "The right to trial by jury is a fundamental one, and the courts
indulge every reasonable presumption against waiver" (Waldman v Cohen, 125 AD2d
116, 121 [1987], citing Aetna Ins. Co. v Kennedy, 301 US 389 [1937]). Applying that
presumption, we find misplaced landlord's reliance upon provisions included in several renewal
leases issued to tenant purporting to waive the right to a jury trial. Such renewal provisions may
not properly be enforced against tenant on this record, and in view of the landlord's inability to
demonstrate compliance with the requirements of Rent Stabilization Code (9 NYCRR)
§2522.5(g) that any renewal lease be on the same terms and conditions as the expired lease
(see Matter of David v New York City Conciliation and Appeals Bd., 59 NY2d 714
[1983]). The court properly declined to consider the (speculative) factual allegations that landlord
first raised in his reply papers (see Costalas v Amalfitano, 23 AD3d 303, 304 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 22, 2008