Opinion
May 13, 1965
Present: Williams, P.J., Bastow, Goldman, Noonan and Del Vecchio, JJ.
Motion for reargument denied. Memorandum: In Matter of MVAIC ( Stein) ( 23 A.D.2d 526) we said (p. 527), quoting from Weinstein-Korn-Miller (N.Y. Civ. Prac.): "Under section 1450 and subdivision 2 of section 1458 of the Civil Practice Act the parties to an arbitration agreement had the right to a jury trial on the issue of failure to comply with a contract to arbitrate. `Although the specific provisions of section 1450 and 1458 (2) are omitted from the CPLR, the new arbitration provisions were "not intended to eliminate trial by jury if it is desirable or constitutionally required."' (Weinstein-Korn-Miller, N.Y. Civ. Prac., pars. 4101.28, 7503.24, 409.03, 410.01, 2218.01.) A jury trial should be had on the issue of the timeliness of giving notice of claim." In that case it seemed that a jury trial was desirable although not constitutionally required. That decision, therefore, is not authority that a jury trial may be had as a matter of right in every MVAIC case of this type.