ESCORP INC v. MYERS

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Supreme Court, Appellate Division, First Department, New York.

ESCORP INC., Petitioner-Respondent, v. Gene MYERS, Respondent-Appellant.

Decided: August 23, 2007

ANDRIAS, J.P., BUCKLEY, CATTERSON, MALONE, KAVANAGH, JJ. Gene Myers, appellant pro se. Law Office of Melvyn R. Leventhal, New York (Melvyn R. Leventhal of counsel), for respondent.

Order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered April 28, 2006, which affirmed a final judgment, Civil Court, New York County (Laurie L. Lau, J.), entered September 7, 2004, granting possession of the subject premises to petitioner-landlord, unanimously reversed, on the law, without costs, the final judgment of the Civil Court vacated, and the matter remanded for a jury trial before a different Judge.

Given that the record is clear that the pro se respondent-tenant demanded a jury trial in his answer and paid the requisite fee, and that he repeatedly asserted his right to a jury trial to the Civil Court Judge, who nevertheless tried the matter without a jury, we deem the error, although not addressed at Appellate Term, sufficiently fundamental to warrant reversal.   We express no opinion as to the merits, except to observe that the incomplete record does not appear to necessarily foreclose a reasonable jury from finding in favor of the tenant.