49 A.D.2d 855 | N.Y. App. Div. | 1975
Order entered in the Supreme Court, New York County, on May 27, 1975, unanimously affirmed, with $40 costs and disbursements to respondents. This action for breach of contract was placed upon the nonjury calendar by defendant for trial. At a pretrial conference the court was informed by plaintiffs’ counsel that plaintiffs had not intended to waive a jury trial and that the failure to timely demand a jury was caused solely through inadvertence due to unfortunate circumstances existing in such counsel’s office. Thereafter Special Term granted plaintiffs’ motion to restore the case to the general calendar, vacated their default in asking for a jury trial and placed the matter on the general jury calendar. Defendants appeal from that order. On the record before us, we find that Special Term correctly determined that plaintiffs’ failure to file a timely jury demand was caused through inadvertence, without any intention to waive their rights to a trial by jury, and that defendants will not thereby suffer undue prejudice and, therefore, we affirm. (See CPLR 4102, subd [e].) Concur—Stevens, P. J., Murphy, Lupiano, Lane and Nunez, JJ.