Supreme Court, Erie County, March 16, 2022

Chelus, Herdzik, Speyer & Monte, PC (Thomas P. Kawalec of counsel) and Barrett Lazar, LLC (Scott A. Lazar of counsel) for Mavis Tire Supply, LLC, defendant.

Law Office of Victor M. Wright (Richard Zielinski of counsel) for Andrew C. Bloomingdale and another, defendants.

Andruschat Law Firm (Timothy J. Andruschat of counsel), McGorry Law Firm, LLP (Michael McGorry of counsel) and Chad Hirsch for plaintiff.

This motion is brought by defendant Mavis Tire Supply, LLC, and joined in by remaining defendants, for leave to file a demand for jury trial more than two years after plaintiff filed the note of issue and certificate of readiness demanding a nonjury trial, a fact known to defendants at or about the time of the filing. This court holds that granting such relief would be an improvident exercise of discretion under the circumstances of this case and denies the motion.

This court hereby issues the following decision and order denying the relief requested.

Plaintiff Carlos Ramirez-Hernandez claims he sustained injuries in a motor vehicle [*2]collision on December 31, 2016. Plaintiff's vehicle collided with a vehicle owned by defendant Kimberly S. Bloomingdale, and driven by defendant Andrew C. Bloomingdale who was in the course of his employment with defendant Mavis Tire Supply, LLC. Plaintiff has not worked since the collision due to injuries to his neck and back he claims were caused by the collision. Plaintiff received conservative care and treatment followed by a cervical discectomy and fusion{**75 Misc 3d at 251} at C5-7 on January 31, 2018. A note of issue with certificate of readiness demanding a nonjury trial was filed on December 13, 2019 (NY St Cts Elec Filing [NYSCEF] Doc No. 33, note of issue: without jury). All parties agree that the note of issue and certificate of readiness were filed without material inaccuracy and with the knowledge and awareness of all counsel that it was for a nonjury trial.

In April 2021, defendant Mavis's motion for post-note of issue discovery regarding plaintiff's increasing complaints of neck and low back pain was granted without striking the note of issue and certificate of readiness (NYSCEF Doc No. 81). Plaintiff underwent low back surgery on November 29, 2021. This motion was then brought asserting that the complexity of such surgery constitutes "new and/or expanded claims of injury" that have the "potential to have a significant impact on the disposition of this case" (NYSCEF Doc No. 95, Kawalec affirmation paras 16-18) justifying a motion for leave to serve a late demand for a jury trial.

The Constitution of the State of New York recognizes the right to a jury trial and it also cautions that a jury trial may be waived in a civil case "in the manner to be prescribed by law." (NY Const, art I, § 2.) The demand and waiver for a jury trial occurs by operation of CPLR 4102 (a) and Uniform Rules for Trial Courts (22 NYCRR) § 202.21 (c).

When discovery is complete and the matter is ready for trial any party may file a certificate of readiness with a note of issue to place the matter on the trial calendar. When one party files a note of issue demanding a nonjury trial, court rules require any other party to the matter who desires a jury trial to file such a demand within 15 days. Failure to timely demand a jury trial constitutes a waiver by operation of CPLR 4102 (a) (the right to a trial by jury shall be deemed waived by all parties) and Uniform Rules for Trial Courts (22 NYCRR) § 202.21 (c) (shall constitute a waiver by all parties and the action or special proceeding shall be scheduled for nonjury trial).

Under 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."

As discussed below, courts have held that such failure must be inadvertent and demonstrate a lack of the intention to waive the right to a jury trial before such relief is proper. Further,{**75 Misc 3d at 252} once the moving party becomes aware of its failure to demand a jury trial it must promptly move to correct the error.

"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]).

The Appellate Division, Second Department, reversed the trial court because it "improvidently exercised its discretion" in light of plaintiffs' failure to demonstrate that the filing of the note of issue demanding a nonjury trial was the result of inadvertence or other error (Skelly v Sachem Cent. School Dist., 309 AD2d at 918). Even so, some courts have held that inadvertence combined with a lengthy delay will support Supreme Court's decision to deny a motion for leave to serve [*3]and file a demand for a jury trial (see Lackowitz v City of Yonkers, 29 AD3d 744 [2d Dept 2006]).

Courts require a combination of inadvertence or excusable conduct with prompt efforts to correct the unintentional or inadvertent waiver of a jury trial. In L.T.B. Constr. Co. v Port of Oswego Auth. (154 AD2d 903 [4th Dept 1989]) the Appellate Division, Fourth Department, held that Supreme Court was within its discretion to deny relief where after a 16-month delay in seeking leave to file a jury demand, "[d]efendant failed to demonstrate factually that failure to demand a jury trial was inadvertent or unintentional and failed to assert any excuse for its delay in seeking relief. Under the circumstances, the trial court's denial of defendant's motion was not an abuse of discretion" (L.T.B. Constr. Co. v Port of Oswego Auth. at 903).

In Leone v Greek Peak (81 AD2d 751 [4th Dept 1981]) the Appellate Division, Fourth Department, reversed a lower court that denied the requested relief by plaintiff's counsel who averred his failure to demand a jury trial was an oversight that was promptly the subject of a motion to correct his error once he was made aware of it. "In such circumstances, and in the absence of any claim of prejudice to the defendants, the motion should have been granted" (Leone v Greek Peak at 751 [citations omitted]).

In this action, defense counsel all agree they were aware that plaintiff demanded a nonjury trial at or about the time{**75 Misc 3d at 253} the note of issue was filed before waiting over two years to seek relief from that decision. "A party's mere change of mind, after the 15-day deadline for requesting a jury has passed, is not a recognized consideration or excuse for determining whether a late jury request should be permitted" (Hon. Mark C. Dillon, 2020 Supp Practice Commentaries, McKinney's Cons Laws of NY, CPLR C4102:5).

The recent case of Braun v Cesareo (170 AD3d 1540 [4th Dept 2019, Curran, J., dissenting]) is consistent with this analysis. The Appellate Division, Fourth Department, specifically sets forth the same two-step process of confirming that the waiver was inadvertent and that the moving party promptly acted to correct its error. The Court noted that "the parties and Supreme Court implied that they expected to proceed to a jury trial" (Braun v Cesareo, 170 AD3d at 1543) and there was a "negligible delay" in that the motion was made one day after the deadline to make a timely demand for a jury trial (Braun v Cesareo, 170 AD3d at 1542). The Braun Court confirmed there was an inadvertent failure with prompt action to correct the error before it considered the issue of prejudice. Here, neither factor weighs in defendants' favor.

Defense counsel relies upon Cicco v Durolek (147 AD3d 1486 [4th Dept 2017]) which does not recite whether the waiver of a nonjury trial was inadvertent when Supreme Court granted the requested relief or the length of the delay in seeking relief. In any event, the decision to grant such relief is "within the sound discretion of the [trial court]" subject to a determination whether "the court improvidently exercised its discretion" (Calabro v Calabro, 133 AD2d 604, 604 [2d Dept 1987], citing Gonzalez v Concourse Plaza Syndicates, 41 NY2d 414 [1977]). The more recent case of Braun, in addition to L.T.B. Constr. and Leone, confirms that principles of inadvertence and prompt action to correct the error by the moving party are essential elements for a court to exercise discretion to grant relief under CPLR 4102 (e).

In this action, the persistent acknowledgment by all counsel that the court was to conduct a nonjury trial, coupled with a two-year delay, violates those principles and is not due the relief otherwise appropriate for the inadvertent failure to timely demand a jury trial.

Plaintiff's counsel also argues that defendant's motion is motivated, in part, upon the [*4]reassignment of this case from Hon. Diane Devlin, J.S.C., to this court's docket. Given the{**75 Misc 3d at 254} speculative nature of the argument, and its irrelevance to the determination of the motion, it is without merit and afforded no weight.

It is hereby ordered that the motion brought on behalf of defendant Mavis Tire Supply, LLC, and joined by defendants Andrew C. Bloomingdale and Kimberly S. Bloomingdale, seeking leave to serve a demand for a jury trial, nunc pro tunc, is denied.