You are here: / / DEMAND FOR A JURY TRIAL, MADE ONE DAY LATE, SHOULD HAVE BEEN GRANTED, THE...
,

DEMAND FOR A JURY TRIAL, MADE ONE DAY LATE, SHOULD HAVE BEEN GRANTED, THE DENIAL OF THE ORAL APPLICATION FOR A JURY TRIAL IS PROPERLY CONSIDERED ON APPEAL FROM THE FINAL JUDGMENT, EVEN THOUGH NO FORMAL MOTION ON NOTICE WAS MADE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over an extensive dissent, determined (1) defendants’ oral application requesting a jury trial, made one day late, should have been granted, and (2) the appeal from a final judgment allows an appeal of the denial of the late application for a jury trial, even though no formal motion on notice was made. The dissent argued the denial was not appealable because there was no formal motion on notice:

An appeal from a final judgment “brings up for review . . . any non-final judgment or order which necessarily affects the final judgment” (CPLR 5501 [a] [1]). The parties do not dispute that the order denying defendants’ application for leave to file a late demand for a jury trial necessarily affected the final judgment. …

… [T]he State Constitution provides for a right to a jury trial in civil cases (see NY Const, art I, § 2 … ). Although that right may be waived through the failure to demand it in a timely fashion (see CPLR 4102 [a]), the court “may relieve a party from the effect” of such waiver “if no undue prejudice to the rights of another party would result” (CPLR 4102 [e]). While “[t]he decision . . . to relieve a party from failing to timely comply with CPLR 4102 (a) lies within the sound discretion of the trial court” … , we conclude that the court’s denial of defendants’ application was an abuse of discretion. Braun v Cesareo, 2019 NY Slip Op 01962, Fourth Dept 3-15-19

 

You might also like
Restaurant Chair Collapsed: No Question of Fact About Constructive Notice of Condition of the Chair/Res Ipsa Loquitur Did Not Apply
THE SEARCH OF DEFEFNDANT’S VEHICLE BY PAROLE OFFICERS WAS NOT COMPLETELY UNRELATED TO AN ILLEGAL FRISK BY A POLICE OFFICER WHICH REVEALED THE CAR KEYS; COCAINE FOUND IN THE VEHICLE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT).
Resentencing After Original Sentence Expired Violates Double Jeopardy Clause
Police Officer Involved In Accident Acted Appropriately In an Emergency Operation—Defendants Not Liable As a Matter of Law
Plaintiff’s Allegations of Injuries in the Bill of Particulars Were Not So Broad as to Constitute a Waiver of the Physician-Patient Privilege for Plaintiff’s Entire Medical History
ONLY THE CHIEF ADMINISTRATOR OF THE COURTS HAS THE POWER TO APPOINT CHIEF CLERKS AND DEPUTY CHIEF CLERKS OF THE SURROGATE’S COURTS (FOURTH DEPT).
School Not Liable for Injury to Student Crossing Street to Enter School–Student Was Not In the Custody or Control of the School When He Was Injured
DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BASED UPON A PRIOR FEDERAL DRUG CONSPIRACY CONVICTION; THE ISSUE FALLS WITHIN A NARROW EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

EVIDENCE NOT SUFFICIENT TO SUPPORT ‘INDICATED’ CHILD MALTREATMENT... IN THIS COMBINED ARTICLE 78 AND DECLARATORY JUDGMENT ACTION, THE FOUR-MONTH...