Opinion
340135.
Decided June 3, 2008.
In this contested probate proceeding, objectant pro se, Katherine D'Alessandro, moves for an order granting her a trial by jury. The proceeding was commenced by Nicolina D. Hayhurst on December 15, 2005. Ms. D'Alessandro filed objections to probate on August 3, 2006.The decedent died testate on October 24, 2005. Nicolina is decedent's sister; she is a distributee, as well as the nominated executor and residuary beneficiary under the propounded instrument dated May 11, 1974. Katherine is a distributee; she is a daughter of one of the decedent's pre-deceased brothers. She does not receive anything under the propounded instrument.
Katherine asserts that she verbally requested a jury trial at conferences before two different court attorney-referees and was "told that the conference would be first." She contends that she was not informed that a jury demand had to be in writing, although she also states her belief that she "signed for this." Had Katherine advised the court that she wanted a jury trial, she would have been advised to file a jury demand.
In her moving papers, Katherine again asserts that one of the court attorney-referees is "in harmony" with Nicolina's attorney. This assertion was the subject of a prior decision (dec no. 666, October 30, 2007) of the court, which denied Katherine's motion for disqualification of the court attorney-referee because Katherine did not assert any of the statutory disqualifications set forth in section 14 of the Judiciary Law to support her motion ( see Schreiber-Cross v State of New York , 31 AD3d 425 [2nd Dept 2006] and Moers v Gilbert, 175 Misc 733 [Sup Ct, New York County 1941][court referee is held to the same standards as a Judge] and because the record did not reveal any other basis on which the court might be inclined to assign a different court attorney to the case.
SCPA 502 (2)(a) states that "[e]ach respondent demanding a jury trial must do so in his answer or objections." It is on this basis that Nicolina opposes Katherine's request. Her attorney also refutes Katherine's assertion that she verbally requested a jury trial. Nicolina's attorney states that the "[o]nly discussion about a jury trial was raised at a court conference on February 8, 2008." He states that prior to that date, Katherine had insisted the matter be heard by the judge. Nicolina's attorney also asserts that Katherine's actions have delayed the proceeding and prejudiced the estate.
A party who fails to timely demand a jury trial is deemed to have waived the right (SCPA 502[a][i]). However, the court has the discretion to relieve the party from the waiver and allow the filing of a late jury demand if it does not cause undue prejudice to the other parties, if the delay is a short one (CPLR 4102[e]; Beck v 200 Wyndham Assocs., 61 AD2d 804 [2d Dept 1978] [six-day delay] ; Matter of Mirsky, 81 Misc 2d 9 [Sur Ct, New York County 1975] [thirteen-day delay]; Matter of Beatty, 205 Misc 962 [Sur Ct, Suffolk County 1954] [ten-day delay]).
Here, the delay is a lengthy one, eighteen months. Courts have generally taken a hard line and disallowed nunc pro tunc jury demands regardless of actual prejudice or lack thereof to the other party ( Matter of Bosco, 141 AD2d 639 [2d Dept 1988]["[t]he petitioner's misunderstanding of the law and alleged reliance on erroneous legal advice do not warrant the granting of such an untimely demand [eighteen-month delay] regardless of the lack of prejudice to the respondent"]; Fils v Diener, 59 AD2d 522 [2d Dept 1977] [excusing five-month delay was an abuse of discretion]; Zelvin v Pagliocca, 32 AD2d 561 [2d Dept 1969] [four-and-one-half month delay]). This is true even in the case of a pro se litigant ( Matter of Fruchtman, NYLJ, Nov. 28, 1997, at 34, col 3 [Sur Ct, Kings County] [two-and-one-half-year delay]).
In this case, Katherine did not serve or file a timely jury demand. Indeed, she first requested a jury trial approximately eighteen months after she filed objections to the probate of the propounded instrument. Accordingly, her motion for a jury trial is denied.
This is the decision and order of the court.