Opinion
October 16, 1961
In an action to recover damages to plaintiff's airplane, sustained in a collision with a pile of snow, while plaintiff was attempting to land its airplane at MacArthur Airport, operated and controlled by defendant, plaintiff appeals from an order of the Supreme Court, Suffolk County, entered April 7, 1961, granting defendant's motion, pursuant to subdivision 5 of section 426 of the Civil Practice Act, for leave to file a jury demand nunc pro tunc as of February 15, 1960, and directing that the action be transferred to the Jury Calendar to take its place with the regular issues noticed for trial on or about February 15, 1960. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion, the granting of the motion was an improvident exercise of discretion. The excuse offered by the defendant's attorney of record for the delay in moving of one year after the note of issue was served and filed, namely: that he has no recollection of having received the plaintiff's note of issue without a jury demand, was inadequate. Moreover, the transfer of the action on the eve of trial from the Nonjury to the Jury Calendar is prejudicial to the plaintiff, since such transfer will result in delaying the trial for about four years. Nolan, P.J., Beldock, Kleinfeld, Christ and Brennan, JJ., concur.