Summary
addressing the distinction of which types of damages a party may recover where a promisor fails to procure insurance
Summary of this case from Friebely v. C.D. Perry & SonsOpinion
1520N
August 1, 2002.
Order, Supreme Court, New York County (Herman Cahn, J.), entered September 6, 2001, which granted plaintiff's motion to amend its note of issue and denied defendant's cross motion for a jury trial, unanimously reversed, on the law, without costs, the motion denied, and the cross motion for jury trial granted.
CHRISTOPHER C. LOEBER, for plaintiff-respondent.
RENEE M. PLESSNER, for defendant-appellant.
Before: Andrias, J.P., Buckley, Rosenberger, Wallach, Gonzalez, JJ.
Over defendant's opposition, the IAS court initially granted plaintiff's motion, in October 2000, to sever certain (Pool I) claims for referral to a referee; but in his subsequently filed note of issue, dated February 2001, plaintiff inexplicably demanded a jury trial on that issue. Two months later, plaintiff moved to amend the note of issue to omit his request for a jury trial.
Once a party has demanded a jury trial, he may not withdraw that demand without the consent of the other parties (CPLR 4102[a]). In granting plaintiff's motion to amend the note of issue, the IAS court found lack of prejudice to defendant (see, CPLR 4102[e]) based on the circumstance that the court had already ordered this issue to be tried by a referee. However, that prior referral order was recently reversed on appeal by this Court ( 288 A.D.2d 108), subsequent to the IAS court's latest ruling. Defendant thus would be prejudiced by losing its constitutional right to a jury trial on this issue of money damages.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.