Opinion
No. 1107.
August 23, 2007.
Order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered April 28, 2006, which affirmed a final judgment, Civil Court, New York County (Laurie L. Lau, J.), entered September 7, 2004, granting possession of the subject premises to petitioner landlord, unanimously reversed, on the law, without costs, the final judgment of the Civil Court vacated, and the matter remanded for a jury trial before a different Judge.
Gene Myers, appellant pro se.
Law Office of Melvyn R. Leventhal, New York (Melvyn R. Leventhal of counsel), for respondent.
Before: Andrias, J.P., Buckley, Catterson, Malone and Kavanagh, JJ.
Given that the record is clear that the pro se respondent tenant demanded a jury trial in his answer and paid the requisite fee, and that he repeatedly asserted his right to a jury trial to the Civil Court Judge, who nevertheless tried the matter without a jury, we deem the error, although not addressed at Appellate Term, sufficiently fundamental to warrant reversal. We express no opinion as to the merits, except to observe that the incomplete record does not appear to necessarily foreclose a reasonable jury from finding in favor of the tenant. [ See 11 Misc 3d 143(A), 2006 NY Slip Op 50751(U).]