JIN CHUNG KIDD v. STEVEN FAUTH BEEKMAN LANDING CONDOMINIUM BEEKMAN LANDING CONDOMINIUM BOARD SIREN MANAGEMENT CORPORATION NORFOLK BUILDERS INC GRANT MCLELLAN JOHN DOE DEFENDANTS (2024)

This action arises from property damage suffered by plaintiffs in Superstorm Sandy. In 2020, plaintiffs filed a non-jury note of issue.¹ (See NYSCEF No. 168.) The action is scheduled for trial in September 2024. In early 2024, plaintiffs, now represented by new counsel, brought this motion to amend the note of issue to demand a jury trial. Plaintiffs claim that the prior non-jury note of issue had been filed without their knowledge or consent. The motion is denied.

Under 22 NYCRR 202.21, a party seeking to vacate a note of issue more than 20 days after filing must demonstrate that "unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness requiring additional pretrial proceedings to prevent substantial prejudice." (C Castle Group Corp. v Herzfeld & Rubin, P.C., 211 AD3d 1006, 1006 [2d Dept 2022].) The "substitution of new counsel or the delinquencies of predecessor counsel alone," however, "is insufficient to show the presence of unusual or unanticipated circumstances subsequent to the filing of the note of issue and certificate of readiness." (Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794 [2d Dept 2022].)

Plaintiffs do not provide contrary authority for the proposition that they should be able to vacate or amend a properly filed nonjury note of issue under the facts of this case. At most, plaintiffs rely on Leone v Greek Peak, Inc. (81 AD2d 751 [4th Dept 1981]). But that case involved a clerical error, in which the moving party's attorney had "inadvertent[ly] and due to oversight" checked the wrong box on the note-of-issue form—and moved for leave to serve a jury demand "[l]ess than three months later." (Id. at 751 [internal quotation marks omitted].) Given the differences between this case and Leone, both in the nature of the claimed error and in the amount of time between the filing of the note of issue and the request to file a jury demand, the court concludes that Leone is inapposite here.²

In any event, plaintiffs do not convincingly establish that they neither agreed to nor knew of their former counsel's filing a non-jury note of issue. Plaintiffs rely on three emails from John Kidd to their former counsel: one from February 2020 (a month before the note of issue was filed), noting that "Jury trial will add punitive"; one from January 2023 email, asking "what are chances of jury trial requested," and one from October 2023 asking whether counsel had "check[ed] off box indicating request indicating request for jury trial." (NYSCEF No. 392 at 5.) These emails, excerpted from longer email threads that have not been provided on this motion, are not sufficient to establish that (i) plaintiffs directed their counsel before the note of issue was filed to seek a jury trial; (ii) counsel chose not to do so (or failed to do so out of inadvertence); and (iii) plaintiffs were unaware that counsel had failed to comply with their instructions until the bringing of this motion.

Accordingly, it is

ORDERED that plaintiffs' 2024 motion to amend their 2020 note of issue to add a jury demand is denied.

DATE 7/11/2024

FOOTNOTES

1.   In October 2021, this court denied plaintiff's summary-judgment motion, and granted in part and denied in part the summary-judgment motion filed by defendant Beekman Landing Condominium. (See NYSCEF No. 369 [order memorializing decision delivered on the record; NYSCEF No. 377 at Tr. 33-54 [decision on the record].) The parties' appeal and cross-appeal from this court's summary-judgment rulings were withdrawn before the deadline to perfect.

2.   Plaintiffs contend that their delay was due in part to the disruptions caused by the COVID-19 pandemic. Plaintiffs do not, however, explain, why COVID-19-related delays would have lasted all the way until the end of 2023 or the beginning of 2024.

Gerald Lebovits, J.