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NORMAN Y. ZELVIN v. EUGENE PAGLIOCCA ET AL. (04/21/69)

April 21, 1969

NORMAN Y. ZELVIN, APPELLANT,
v.
EUGENE PAGLIOCCA ET AL., DOING BUSINESS AS PAGLIOCCA SONS, RESPONDENTS



Appeal by plaintiff from an order of the Supreme Court, Westchester County, dated September 25, 1968, which granted defendants' motion for leave to serve and file a jury demand nunc pro tunc.

Christ, Acting P. J., Brennan, Rabin, Munder and Martuscello, JJ., concur.

In our opinion, it was an improvident exercise of discretion to grant the leave requested. The application was not made until 4 1/2 months after plaintiff's non-jury note of issue was served. In addition, there is no adequate factual showing that the failure of defendants' former attorneys to demand a jury trial was inadvertent and that defendants had no intention to waive their right to a jury trial (Eastern Air Lines v. Town of Islip, 14 A.D.2d 792; 7 Carmody-Wait 2d, N. Y. Prac., § 49.59).

Disposition

Order reversed, on the law and the facts, with $20 costs and disbursements, and motion denied.

19690421

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