Regan v. Martindale

I would affirm the order appealed from for the reasons stated by Justice Rubin at Trial Term. The statute (CPLR 4102, subd [a]) and the rules (22 NYCRR 660.4 [c]) plainly require that the jury demand be included in the note of issue. CPLR 4102 (subd [a]) further provides: "If no party shall demand a trial by jury as provided herein, the right to trial by jury shall be deemed waived by all parties.” There is simply no basis for the procedure adopted by the plaintiff in serving two notes of issue, four months apart, each stating plaintiff requested a trial without jury, subject to the…