| N.Y. App. Term. | Jan 7, 1982
Lead Opinion
OPINION OF THE COURT
Memorandum.
Order insofar as appealed from reversed, without costs, and motion denied.
The plaintiff’s consent was not necessary in order for the defendants to withdraw their demand for a jury trial (CPLR 4102, subds [a], [c]; 4 Weinstein-Korn-Miller, NY Civ Prac, pars 4102.05, 4102.15,4102.18). We incidentally note that under the facts herein the plaintiff was not entitled to file a jury demand nunc pro tune pursuant to CPLR 4102 (subd [e]) (see Fils v Diener, 59 AD2d 522; see, also, Brigando v Grumman Aerospace Corp., 78 AD2d 865).
Concurrence Opinion
(concurring). I concur with the result based upon the present state of the law. However, I deplore the “gamesmanship” practiced by defendants-appellants Coney Island Site Five Houses, Inc., and Spew Management Corporation. Appellants filed a jury demand, thereby delaying the trial of the action. Thereafter, as the matter was about to be tried and the jury selection process had begun, appellants sought to withdraw their jury demand over plaintiff’s objections. Permitting a defendant to withdraw the demand at that point places a plaintiff at a decided disadvantage. Defendant, if satisfied with the prospective panel, will proceed to a trial by jury, whereas if he is not satisfied all he need do is withdraw his demand and obtain a nonjury trial. Plaintiff, however, has no such option. Such tactics should not be countenanced and it is suggested legislation be enacted to remedy the situation.
Pino, P. J., and Buschmann, J., concur; Jones, J., concurs in a separate memorandum.