Rosenbaum v Schlossman, 2010 NY Slip Op 03494 (App. Div., 1st, 2010)
Order, Supreme Court, New York County (Milton A. Tingling, J.),
entered March 30, 2009, which denied defendants' motion to vacate the
note of issue, unanimously affirmed, without costs. Order, same court,
Justice and entry date, which denied defendants' motion to stay a
scheduled nonjury trial of this matter and compel the Clerk to accept a
jury demand, unanimously modified, on the facts, to direct the Clerk to
accept the jury demand nunc pro tunc, and, in view of the interim stay
of trial previously ordered by this Court, the remainder of the appeal
from said order unanimously dismissed as academic, without costs.
Defendants should be permitted to serve and file a late jury
demand given that the lateness, by only five days, was due in part to
the late filing of the note of issue, and also given no intention by
defendants to waive a jury trial, a prompt motion by defendants to be
relieved of their default in timely filing a jury demand, and no
prejudice to plaintiff caused by the late jury demand (see A.S.L.
Enters. v Venus Labs., 264 AD2d 372, 373 ). Defendants' motion
to vacate the note of issue was properly denied where defendants had
received copies of plaintiff's letter to the court requesting the
court's issuance of a written order memorializing a prior oral order
extending the time to file a note of issue, but did not object to the
requested relief or inform [*2]the court,
at that time, of their view that disclosure was incomplete (22 NYCRR
202.21[d]). We have considered and rejected defendants' remaining
The bold is mine.
Instead of simply writing that the remaining contention is "rejected" wouldn't it be nice if they said what the remaining contention was.