Opinion
1856/C-2013
04-17-2015
In the Matter of the Estate of Giovanni Marrelli a/k/a JOHN MARRELLI, Deceased.
For Petitioner/Movant, Battista Marrelli:Rheem Bell & Mermelstein, LLP, 302 Fifth Avenue - 8th Floor, New York, New York 10001 For Objectant, Jon Jason Marrelli:Stephen L. Kay and Associates, PLLC, 61 Broadway, Suite 2125, New York, New York 10006 For Objectant, Joseph Marrelli:Kuhn and O'Toole LLP, One Edgewater Plaza, Suite 206, Staten Island, New York 10305
For Petitioner/Movant, Battista Marrelli:Rheem Bell & Mermelstein, LLP, 302 Fifth Avenue - 8th Floor, New York, New York 10001
For Objectant, Jon Jason Marrelli:Stephen L. Kay and Associates, PLLC, 61 Broadway, Suite 2125, New York, New York 10006
For Objectant, Joseph Marrelli:Kuhn and O'Toole LLP, One Edgewater Plaza, Suite 206, Staten Island, New York 10305
Diana A. Johnson, J.
The following papers were considered in deciding this motion for an order permitting the late filing of a jury demand:
PapersNumbered
Motion and Affirmation . . . . . . . . . . . . . . . . . . . . . . . .1, 2
Affirmation in Opposition . . . . . . . . . . . . . . . . . . . . . .3
Battista Marrelli ("Movant"), seeks an order permitting him to file a late jury demand in the probate and three turnover proceedings pending before the court. Battista Marrelli is the petitioner in the probate proceeding and one turnover proceeding and is the respondent in the other two turnover proceedings. Jon Jason Marrelli and Joseph Marrelli are the objectants in the probate proceeding who had demanded a jury trial, but later withdrew their demand in writing at a pretrial conference on December 15, 2014.
Movant argues with respect to the probate proceeding that he inadvertently failed to file a jury demand after the objectants withdrew their demand on December 15, 2014. Movant argues that the failure to do so was unintentional. Movant alleges with respect to the turnover proceedings that as they were stayed after joinder of issue in each proceeding, his time to interpose a jury demand was also stayed.
Preliminarily the Court notes that Movant's argument regarding the stays in the turnover proceedings is specious as the stays took effect after the time within which to make the jury demand in those proceedings had expired.
SCPA §502, requires that a respondent make a jury demand at the time of filing the answer or objections, and a petitioner make a jury demand within six days after service of the answer or the objections upon him. Failure to timely file a jury demand results in waiver of the right to demand same.
This notwithstanding, a court retains the discretion to allow the late filing of a jury demand where there is no prejudice (see e.g. Matter of Mirsky, 81 Misc 2d 9 [Sur Ct, New York County 1975], objectant permitted to file amended objections containing a jury demand thirteen days after the attorney inadvertently served objections without jury demand).
Objectant Joseph Marrelli, however, argues that even in the absence of prejudice, controlling case law demonstrates that when an inordinate period of time has passed between when the demand should have been filed and when the application for an extension is made, the extension should be denied.
In the probate proceeding, the time for Movant to have filed objections expired on or about December 18, 2013, making this application to file a jury demand about a year late. In one of the two of the turnover proceedings where Movant is the respondent his time to file a jury demand expired on or about March 14, 2013, making this application for an extension approximately nine months late. In the other where Movant is the respondent, and in the turnover proceeding where Movant is the petitioner, the time to file a jury demand expired on or about September 23, 2014 and September 22, 2014, respectively, making this application for an extension approximately three months late for both.
In order to be granted an extension, courts have required that the motion be made promptly, that the right was not intentionally waived (inadvertence) and lack of prejudice. The Appellate Division in this Department has upheld denials of extensions to file jury demands even in the absence of prejudice where the demand was untimely made (see e.g. Matter of Bosco, 141 AD2d 639 [2d Dept 1988], extension denied to petitioner who alleged she misunderstood the law, relied upon erroneous legal advice and attempted to file a demand eighteen months after the time expired; Fils v Diener, 59 AD2d 522 [2d Dept 1977], permission denied to file a late jury demand after a five-month delay; Zelvin v Pagliocca,32 AD2d 561 [2d Dept 1969], permission denied to file a late jury demand after a four-month delay).
Thus even were it shown that Movant's failure to timely demand a jury was unintentional and an extension would not prejudice the parties, due to the inordinate period of time which has passed between when the demands should have been made and the bringing of this motion, the motion should be denied.
Accordingly, based upon the foregoing, the application for an extension is denied in its entirety.
This constitutes the decision and order of the Court.
_________________________
HON. DIANA A. JOHNSON
S u r r o g a t e
Dated:Brooklyn, New York
April 17, 2015