ALIANO v. LaMAINA (1998)

The plaintiff's cross-motion for an order striking the defendant's demand for a jury trial;  the defendant's cross-motion for an order permitting him to file a jury demand and, inter alia, granting him leave to reargue a prior order of the Court, dated September 30, 1997, are decided as follows:

The defendant's cross-motion for leave to file a jury demand is denied.   The plaintiff's cross-motion for an order striking the defendant's demand for a jury trial is granted.   The defendant's cross-motion for an order granting him leave to reargue is denied.   The Court found that the defendant's default was willful and warranted striking his answer in its prior Order dated September 30, 1997 (see, Hunter Mechanical Corp. v. Salkind, 237 A.D.2d 180, 654 N.Y.S.2d 381;  Seamon v. Apel, 191 A.D.2d 406, 595 N.Y.S.2d 202;  Bay Ridge Lumber Co., Inc. v. Groenendaal, 175 A.D.2d 94, 571 N.Y.S.2d 798).   In light of this finding and the defendant's failure to offer any proof that the defendant's failure to appear for deposition was other than willful, under the circumstances presented in the prior order, dated September 30, 1997, the Court directed the plaintiff to file and serve a note of issue, inter alia, to place this matter on the non-jury trial calendar of this Court for a non-jury trial of damages (see, CPLR § 3215[a], [b] ).  While the defendant has presented no evidence that his default was other than willful, his failure to appear for a deposition conceded only liability (Amusement Bus. Underwriters v. American Intern. Group, 66 N.Y.2d 878, 880, 498 N.Y.S.2d 760, 489 N.E.2d 729;  McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 351, 169 N.E. 605) and the defendant is entitled to a full opportunity to cross-examine witnesses, offer testimony and offer proof in mitigation of damages (see, Bowdren v. Peters, 208 A.D.2d 1020, 617 N.Y.S.2d 66;  Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728, 730, 480 N.Y.S.2d 197, 469 N.E.2d 518).

In considering the request to strike the jury demand, the Court notes that the plaintiff and defendant agree that this scenario or procedural fact pattern is infrequently presented and not addressed, of record.   If the plaintiff had made a successful motion pursuant to CPLR 3212 or CPLR 3211, the defendant would have been entitled to a jury trial on the issue of damages.   So long as the jury demand was timely made, the Court would have been devoid of discretion to strike such a demand, and the case would have been placed on the TAP I calendar for a jury trial.   However, if a successful motion is made pursuant to CPLR 3215 for a default judgment, the matter is set down for a non-jury assessment of damages.   The Court notes that defendant concedes that the provisions of CPLR § 3215(f)(2) are inapplicable and do not provide a basis for a jury demand under the facts of this case.   These motions appear to be a hybrid, i.e. falling between the two results.   Since the nature and procedure of civil jury trials and all rights accruing to the litigants thereunder have been created by the legislature, which has not addressed this issue, the Court is not constrained by legislative or constitutional direction.   The Court finds that the need to properly, speedily and effectively administer justice is best served without the delay and costs incurred in a jury trial.   An examination of the possible prejudice to the defendant by striking his demand reveals that he is the party that provided the impetus for the initial Court determination to strike the answer and now wants a result that is without precedence or authority.   This Court will not assist the defendant, particularly when doing so would defer the trial by 11/212 years, the difference between the jury and non jury calendar.

 The Court notes that it would not have struck a timely served jury demand made by plaintiff in these circumstances.   A balancing of the equities would tip in favor of the plaintiff, an innocent party, but does not so, for the defendant, as such a result would reward improper conduct.

The defendant's jury demand is struck and this matter shall remain on the TAP II or non-jury calendar.

F. DANA WINSLOW, Justice.