LexisNexis(TM) Academic - Document
Copyright 2004 ALM Properties, Inc. All Rights Reserved.
New York Law Journal
April 26, 2004, Monday
SECTION: DECISIONS; Vol. 79; Pg. 31
LENGTH: 352 words
HEADLINE: Surrogate's Court Decision;
Surrogate Feinberg
BODY:
ESTATE OF MILDRED V. STRAND Respondent's motion to grant their demand for a jury trial pursuant to CPLR §[4102[e] is denied.
A demand for a jury trial is required to be made within six days after being served with an answer or objections, [SCPA §[502[2][a]].
The Surrogate's Court may relieve a party of a failure to demand a jury and will look to the criteria under CPLR §[4102[e] which permits a late jury demand "if no undue prejudice to the rights of another party would result." Respondent filed a verified answer on or about January 10, 2001. Petitioner filed an answer to respondent's counterclaims on or about March 23, 2001 and petitioner served respondent with an amended verified petition to add an additional party on or about July 7, 2003.
Respondent states that the answer was drafted by a former associate in the firm who was admitted to the New York State Bar less than a year before drafting the answer.
The court is mindful of case law that allowed the late filing of a jury demand when it was the result of lack of familiarity with procedure and inexperience of the attorney's assistant, who had been admitted to the Bar for only two years, [In re Beatty's Will, 205 Misc 962].
However, only if no prejudice can be shown will the court utilize CPLR §[4102[e] to permit a late demand as in Matter of Mirsky, 81 Misc2d 9, where the objectant was excused from filing a late demand where the delay was short and the other party not prejudiced, [Matter of Osgood, NYLJ, Dec 2, 1992, p. 26 [col. 4].
Over three years have past since the filing of the answer and this motion was brought on the eve of trial after discovery has been completed .
Accordingly, the respondent's demand for a jury trial is denied.
As a note of issue and certificate of readiness have been filed, this matter is set down for trial on May 11, 2004 and May 12, 2004 at the Surrogate's Court, 2 Johnson Street, Brooklyn, New York 11201 at 10:30 A.M.
This constitutes the decision and order of the court.
LOAD-DATE: May 2, 2004
