Opinion
April 21, 1969
Appeal by plaintiff from an order of the Supreme Court, Westchester County, dated September 25, 1968, which granted defendants' motion for leave to serve and file a jury demand nunc pro tunc. Order reversed, on the law and the facts, with $20 costs and disbursements, and motion denied. In our opinion, it was an improvident exercise of discretion to grant the leave requested. The application was not made until 4 1/2 months after plaintiff's nonjury note of issue was served. In addition, there is no adequate factual showing that the failure of defendants' former attorneys to demand a jury trial was inadvertent and that defendants had no intention to waive their right to a jury trial ( Eastern Air Lines v. Town of Islip, 14 A.D.2d 792; 7 Carmody-Wait 2d, N.Y. Prac., § 49.59). Christ, Acting P.J., Brennan, Rabin, Munder and Martuscello, JJ., concur.