Summary
In L.T.B Construction Co., Inc., v. Port of Oswego Authority, 154 A.D.2d 903, 547 N.Y.S.3d 162 (4th Dept. 1989) the Appellate Division, Fourth Department, held that Supreme Court was within its discretion to deny relief where after a sixteen-month delay in seeking leave to file a jury demand, "[d]efendant failed to demonstrate factually that failure to demand a jury trial was inadvertent or unintentional and failed to assert any excuse for its delay in seeking relief.
Summary of this case from Ramirez-Hernandez v. BloomingdaleOpinion
October 6, 1989
Appeal from the Supreme Court, Oswego County, Hurlbutt, J.
Present — Callahan, J.P., Denman, Pine, Balio and Lawton, JJ.
Order unanimously affirmed with costs. Memorandum: Sixteen months after filing a trial note of issue, defendant moved to be relieved of its failure to serve and file a timely demand for jury trial (see, CPLR 4102). Defendant failed to demonstrate factually that failure to demand a jury trial was inadvertent or unintentional and failed to assert any excuse for its delay in seeking relief. Under the circumstances, the trial court's denial of defendant's motion was not an abuse of discretion (see, Green v Siben, 104 A.D.2d 923; Keller v Keller, 66 A.D.2d 960).
We also conclude that the court did not abuse its discretion in severing the third-party action and directing a separate trial of that claim. The third-party action was asserted three years after commencement of the main action, one year after the main action reached the Trial Calendar, and on the eve of trial. No excuse was proffered for the delay in commencing the third-party action, and the court properly concluded that plaintiff would be unduly prejudiced by further delays in trial of the main action (see, Strange v Sampson, 73 A.D.2d 749; Vita Food Prods. v Epstein Sons, 52 A.D.2d 522).