Opinion
570478/07.
Decided December 22, 2008.
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.
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.
PRESENT: Davis, J.P., Schoenfeld, Heitler, JJ.
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, citing Aetna Ins. Co. v Kennedy, 301 US 389). 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). 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).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.