SAPP v. [And a Third-Party Action]. (2004)

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 10, 2004, which granted defendants' motion for leave to withdraw their jury demand, unanimously reversed, on the law, with costs, and the motion denied.

Although the lease between the parties contains a waiver of the right to a jury trial, defendants served and filed a jury demand on or about May 2, 2003.   On or about January 21, 2004, the parties were advised that jury selection would begin on February 11, 2004.   On the latter date, however, defendants made an oral application for leave to withdraw their jury demand, whereupon the court, sua sponte, adjourned the trial in order to afford defendants time to move on papers for such relief.   On defendants' subsequent written motion, and over plaintiffs' opposition, the court granted defendants leave to withdraw their jury demand.

 We reverse.   Under CPLR 4102(a), defendants had no right to withdraw their jury demand without plaintiffs' consent (see Muhl v. Vesta Fire Ins. Corp., 297 A.D.2d 213, 214, 745 N.Y.S.2d 691 [2002];  Chase Manhattan Bank v. Kalikow, 143 A.D.2d 557, 559, 532 N.Y.S.2d 764 [1988] ).   Defendants' delay of the motion to withdraw the jury demand until the scheduled date of jury selection was unduly prejudicial to plaintiffs, thereby precluding relief under CPLR 4102(e), in that, by the time of the motion, the jury demand had led plaintiffs to prepare for a jury trial.   In addition, defendants' filing of the jury demand presumably resulted in a lengthier delay of the trial than otherwise would have occurred (see Arkin v. Sig Heller Co., 197 Misc. 1084, 99 N.Y.S.2d 175 [App. Term, 1st Dept. 1950] ).   As to the lease's jury-waiver clause, it is no longer determinative of the mode of trial.   Defendants waived the protection of that clause by affirmatively demanding a jury trial and then failing to seek to withdraw the demand until nine months later (see General Motors Accept. Corp. v. Clifton-Fine Central School Dist., 85 N.Y.2d 232, 236, 623 N.Y.S.2d 821, 647 N.E.2d 1329 [1995] [waiver is “the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable”] ).   In this regard, we note that even delay in moving to strike an adversary's jury demand may preclude a party from relying on a contractual waiver of the right to trial by jury (see Arkin v. Sig Heller Co., 197 Misc. at 1085, 99 N.Y.S.2d 175;  see also Livelastic Suspender & Garter Co. v. Walker, 99 N.Y.S.2d 174 [Sup.Ct., N.Y. County 1950];  Moskowitz v. Keith Sales Corp., 99 N.Y.S.2d 173, 174 [Sup.Ct., N.Y. County 1948] ).