Opinion
February 11, 1976
Appeal from the Civil Court of the City of New York, Bronx County, BENJAMIN F. NOLAN, J.
Donald Grajales, Alfred Levine and James S. Braude for appellant.
The court below erred in denying to tenant her right to a trial by jury. The relevant language of section 745 Real Prop. Acts. of the Real Property Actions and Proceedings Law is unequivocal and, as such, a demand for the rights contained therein, if timely, is not addressed to the discretion of the court. As long as triable issues of fact are raised, of which the instant proceeding contains a plethora, a court's investigation into the merits of the case and/or its consideration of the fiscal difficulties presently faced by the City of New York is improper and unnecessary.
Moreover, "As a poor person, she may not be required to pay a jury fee (CPLR 1102, subd [d])" (Hotel Martha Washington Mgt. Co. v Swinick, 66 Misc.2d 833, 834). Order entered December 2, 1975, reversed without costs.
Concur: DUDLEY, J.P., HUGHES and RICCOBONO, JJ.