Summary
In A.J. Fritschy Corp. v. Chase Manhattan Bank, 36 AD2d 600 (1st Dept 1971), the First Department held that although it is preferable that it be brought as early as possible, a motion to strike a jury demand by invoking a jury waiver clause may nevertheless be made at any time before trial so long as the delay does not unduly prejudice the other side.
Summary of this case from Misra v. YedidOpinion
February 23, 1971
Order, Supreme Court, New York County, entered on October 22, 1970, herein appealed from, unanimously reversed, on the law, without costs and without disbursements, and the motion to strike plaintiff's demand for a jury trial granted. The joinder by plaintiff of legal and equitable causes of action based upon the same transaction effected a waiver of its right to trial by jury (CPLR 4102, subd. [c]; Tanne v. Tanne, 30 A.D.2d 956; Di Menna v. Cooper Evans Co., 220 N.Y. 391). While the motion to strike may be made at any time up to the opening of trial, it is preferable in the interest of orderly procedure that it be made within a reasonable period prior thereto. The extensive delay in making the motion should not be allowed to prejudice the plaintiff unduly in seeking to have a trial of the issues. Accordingly, it is directed that this case be placed upon the appropriate nonjury calendar without loss of position as if it had been originally placed upon such calendar at the time of the jury demand.
Concur — Stevens, P.J., Capozzoli, McGivern, Markewich and Kupferman, JJ.