Friday, May 27, 2016

Vacating a note of issue, and a jury demand.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion to vacate the note of issue or, in the alternative, for a jury trial.  The motion was untimely as plaintiff brought 15 months after the note of issue was filed. In addition, plaintiff's speculative and unsubstantiated claims of defendants' forgery, spoliation, and obstruction of discovery fall short of the stringent standard of showing unusual and unanticipated circumstances subsequent to the filing of the note of issue that would otherwise justify granting the motion.

Student note:  Plaintiff failed to file a jury demand within 15 days of the filing of the note of issue, and did not provide an excuse for her failure to do so. As a result, she waived any right she may have had to a jury trial, pursuant to CPLR 4102[a].

Case:  Jia Wang v. Chih Shien Kang, NY Slip Op 03980 (1st Dep't May 19, 2016)

Here is the decision.

Monday:  Court holiday.