DECISION & ORDER Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments it is hereby: ORDERED that Defendants CHRISTIAN CONSTRUCTION, LLC and WILLIAM CORRETJER’s Motion for leave to file and serve a jury demand “nunc pro tunc” is hereby denied. This case arises out of a motor vehicle accident suffered between the Pedestrian Plaintiff and Defendant on March 21, 2023, at the intersection of Merry Mount Street and Klondike Avenue in Staten Island. Defendant makes a motion to file a late jury demand. Plaintiff filed Summons and Complaint on April 3, 2023. Defendants filed their Answer on June 7, 2023. This Court granted summary judgment to the Plaintiff on the issue of liability on August 29, 2023, finding that the Defendant in making a left hand turn through the aforementioned intersection, failed to see what should have been seen and to exercise due care in striking the Plaintiff (see Vehicle and Traffic Law §1146[a]; Beityaaghoob v. Klein, 216 A.D.3d, 671, 672 [2nd Dept 2023]). Discovery was deemed complete via Certification from this Court on March 28, 2023. Plaintiff filed Note of Issue, without a demand for a jury, the same day. The Defendants filed the instant motion on July 12, 2024. Plaintiff filed opposition papers on July 17, 2024, and the Defendants filed a reply on July 24, 2024. The Court heard oral arguments on July 24, 2024, and reserved decision. “A motion pursuant to CPLR 4102 (e) for an extension of time to file a demand for a jury trial must be based upon a factual showing that the earlier waiver of that right was the result of either inadvertence or other excusable conduct indicating a lack of intention to waive such a right” (Hyatte v. G.B.W. Glenwood Dental Adm’rs, Inc., 8 A.D.3d 233, 233 [2nd Dept 2004]; see also Rudolf v. Solomon, 172 A.D.3d 773, 774 [2nd Dept 2019]). Moreover, a motion for such an extension should be denied where a plaintiff demonstrates that they would suffer undue prejudice by the granting of the extension (see Rudolf v. Solomon, 172 A.D.3d at 174; Cicco v. Durolek, 147 A.D.3d 1486 [4th Dept 2017]). The Defendants make their motion for leave to file a late demand for a jury. The Defendants assert that, while initially offering the policy limits of $100,000 during litigation, it was discovered after the deadline to file that the actual policy limit was $1,000,000. Upon learning that this limit would apply retroactively to Plaintiff’s claim, the Defendants requested the Plaintiff stipulate to allow the late filing of the jury demand. Upon Plaintiff’s refusal, the Defendants filed the instant motion. The Plaintiff argues in opposition that the Defendants have not demonstrated that their failure to file a jury demand was either inadvertent or excusable. The Plaintiff asserts that at no point during litigation did she indicate she would accept the then offered $100,000 policy limit, and the Defendants made the strategic and deliberate choice not to file a jury demand. Therefore, the Plaintiff argues that the Defendants motion should be denied and the case should proceed to a bench trial. The Court finds that the Defendants failure to timely file a demand for a jury was done with the intent to waive their right to do so. As argued by the Plaintiff, the Defendants made the calculated and strategic decision not to file a jury demand in response to Plaintiff’s Note of Issue, indicating their intent to waive the right (see Hyatte v. G.B.W. Glenwood Dental Adm’rs, Inc., 8 A.D.3d at 233). As such, the Court finds that the Defendant has waived that right, and the Defendant’s motion is denied. This constitutes the Decision and Order of the Court. Dated: August 21, 2024
