Jarrett v. Madifari , 54 A.D.2d 544 ( 1976 )

Order, Supreme Court, Bronx County, entered April 5, 1976, is unanimously reversed, on the law and the facts, without costs and without disbursements, insofar as said order permits plaintiffs to file a jury demand, and plaintiffs’ motion for leave to file a jury demand nunc pro tunc is denied. Defendant-appellant has limited his appeal to this point. Plaintiffs filed a note of issue expressly indicating that the trial should be without a jury in October, 1973. The present motion for leave to file a jury demand nunc pro tunc was made in January, 1976, two and one-quarter years later by essentially new attorneys. No excuse is given for the two and one-quarter year delay. It plainly appears that the request for a nonjury trial and the waiver of jury was intentional and not inadvertent. The conclusory statement made by the present counsel, having no personal knowledge of the facts that "through an inadvertence at the time of the filing of the note of issue, a jury was not demanded” is without probative value. Concur&emdash; Murphy, J. P., Lupiano, Silverman, Nunez and Lynch, JJ.