

Ballinger v Stelle Architects, PLLC (2019 NY Slip Op 02668)





Ballinger v Stelle Architects, PLLC


2019 NY Slip Op 02668


Decided on April 10, 2019


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 10, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
COLLEEN D. DUFFY
HECTOR D. LASALLE
ANGELA G. IANNACCI, JJ.


2017-03166
 (Index No. 17642/06)

[*1]Alan Ballinger, et al., appellants,
vStelle Architects, PLLC, respondent.


Deborah A. Schwartz PLLC, New York, NY, for appellants.
L'Abbate, Balkin, Colavita & Contini, LLP, Garden City, NY (Kristiana C. Zuccarini and Keegan & Keegan, Ross & Rosner, LLP [Daniel C. Ross], of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated January 3, 2017. The order denied their motion, in effect, pursuant to CPLR 4102(e) for leave to serve and file a late jury demand.
ORDERED that the order is affirmed, with costs.
The decision of whether to relieve a party from a failure to serve a timely request for a jury trial lies within the sound discretion of the trial court (see Cicco v Durolek, 147 AD3d 1486, 1487; Buddle v Buddle, 62 AD3d 1192, 1192; Roosa v Roosa, 248 AD2d 858, 858; Calabro v Calabro, 133 AD2d 604, 604). Here, the plaintiffs moved, in effect, pursuant to CPLR 4102(e) for leave to serve and file a late jury demand more than one year after the defendant served a note of issue which did not request a jury trial. In the absence of any evidence in this record to excuse this inordinate delay, the Supreme Court did not improvidently exercise its discretion in denying the plaintiffs' motion (see Lackowitz v City of Yonkers, 29 AD3d 744, 744; Med Part v Kingsbridge Hgts. Care Ctr., Inc., 22 AD3d 260, 261; Amitrano v Notaro, 10 AD3d 667, 668; Fertik v Fertik, 264 AD2d 463, 464; L.T.B. Constr. Co. v Port of Oswego Auth., 154 AD2d 903).
MASTRO, J.P., DUFFY, LASALLE and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


