Is CPLR R. 3212 Constitutional?

Why Summary Judgment is Unconstitutional, Virginia Law Review, Vol. 93, p. 139, 2007, Suja A. Thomas. I found this over at Crime & Federalism (specific post). So what if I'm a couple of years behind. 

Thomas argues that Summary Judgment violates the Seventh Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Anyway, some people took issue with the article, and the author replied with Why Summary Judgment is Still Unconstitutional.

What about in New York?  Is CPLR R. 3212 Unconstitutional?  Funny you should ask; I was just looking that up.  Article 1, Section 2 of New York's Constitution, governs trials by jury:

Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. The legislature may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. A jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense. The legislature may enact laws, not inconsistent herewith, governing the form, content, manner and time of presentation of the instrument effectuating such waiver.

Not quite the same thing as the U.S. Constitution.

The New York Court of Appeals tackled this issue long ago in General Inv. Co. v. Interborough Rapid Transit Co., 235 N.Y. 133 (1923)("In the
instant case we conclude that the constitutional rights of defendant
are not infringed by the rule; that the justice at Special Term
properly held that no issue for submission to a jury was shown to exist
between the parties.")  Of course, CPLR R. 3212 wasn't in play at the time.

Lets look at that quote again:

In the
instant case we conclude that the constitutional rights of defendant
are not infringed by the rule; that the justice at Special Term
properly held that no issue for submission to a jury was shown to exist
between the parties

What if the Court screwed it up?

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