Opinion
May 27, 1976
Order, Supreme Court, New York County, entered December 1, 1975 is unanimously affirmed, without costs and without disbursements and without prejudice to determination of the question of right to jury trial when a new note of issue is filed. The order below vacated plaintiff's note of issue and demand for jury trial. Plaintiff appealed from only so much of the order as vacated the demand for jury trial as to the second cause of action. Under CPLR 4102 (subd [a]) "A demand [for jury trial] shall not be accepted for filing unless a note of issue is filed in the action." With the striking of the note of issue, the jury demand thus also fell. A new jury demand may only be served when there is a new note of issue. It would be premature for us now to rule as to whether plaintiff will then be entitled to a jury trial, particularly, as there are intimations in the papers that the second cause of action may be attacked as insufficient in law or in fact, and as we do not know what the state of the pleadings will be when the new note of issue is filed.
Concur — Markewich, J.P., Kupferman, Lupiano, Silverman and Lynch, JJ.