Opinion
March 20, 1989
Appeal from the Supreme Court, Kings County (Scholnick, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
In 1986 the plaintiff filed a note of issue on which her attorney placed an "x" before the words "Trial without jury". Within 15 days of service of the note of issue, the defendant New York City Health and Hospitals Corporation (hereinafter the hospital) served a demand for a jury trial (see, CPLR 4102 [a]) and the action was placed on the Jury Trial Calendar. Not until 1988 did the plaintiff make an application pursuant to CPLR 4102 (e) to be relieved of what the plaintiff concedes was her waiver of the right to a trial by jury (see, Green v. Siben, 104 A.D.2d 923; Brigando v. Grumman Aerospace Corp., 78 A.D.2d 865). Asserting without contradiction that it had notified all parties of its intention to withdraw its jury demand, the hospital cross-moved, with the concurrence of all other defendants, to formally withdraw it. The tacit granting of the cross motion is not at issue on this appeal.
The hospital had a right to withdraw its jury demand under these circumstances without the plaintiff's consent (see, Gonzalez v. Concourse Plaza Syndicates, 41 N.Y.2d 414; Brigando v Grumman Aerospace Corp., supra) and the plaintiff has failed to demonstrate that her designation that she preferred a nonjury trial was the product of inadvertence (see, Green v. Siben, supra; Joseph v. Exxon Corp., 83 A.D.2d 549; Brigando v. Grumman Aerospace Corp., supra). It appears rather that the designation was a conscious attempt to maneuver one or more of the defendants into making a demand (see, Green v. Siben, supra; see also, Downing v. Downing, 32 A.D.2d 350, 352). The Supreme Court properly exercised its discretion when it gave effect to the plaintiff's originally expressed preference (cf., Gonzalez v. Concourse Plaza Syndicates, supra; see, Joseph v. Exxon Corp., supra). Mollen, P.J., Eiber, Sullivan and Harwood, JJ., concur.