Opinion
October 4, 1971
In a divorce action, defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, dated July 12, 1971, as, on reargument, adhered to the original decision denying his motion for leave to file a demand for a jury trial nunc pro tunc. Order reversed insofar as appealed from, without costs, and motion for leave to file a jury demand granted. The demand must be filed within 20 days after entry of the order hereon. In our opinion, the denial of leave to file a demand for a jury trial was an improvident exercise of discretion. The facts indicate a failure of proof on the part of plaintiff as to the date of service of the note of issue, but, even assuming an untimely jury demand by defendant which caused at most a 14-day delay, the proof fails to establish either a waiver on the part of defendant of the right to a jury trial or the creation of any prejudice to the rights of plaintiff. (cf. Denig v. Seelig, 17 A.D.2d 948). Hopkins, Acting P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.