On November 6, 2024, Justice Cohen of the New York County Commercial Division issued a decision in Iken v. Bohemian Brethren Presbyt. Church, 2024 NY Slip Op. 33951(U), holding that a party that failed timely to asset a jury trial waiver lost the right to assert it, explaining:
CPLR 4102 states, in relevant part, that any party may demand a trial by jury of any issue of fact triable of right by a jury, by serving upon all other parties and filing a note of issue containing a demand for trial by jury. Nonetheless, parties may expressly waive their right to a jury trial on any claim by written agreement.
While the motion to strike may be made at any time up to the opening of trial, it is
preferable in the interest of orderly procedure that it be made within a reasonable period prior
thereto. Furthermore, it is incumbent upon the party challenging a jury demand in a case involving a
contractual waiver of the right to a jury trial to do so in a timely manner.Here, while the Lease Agreement and Guaranty entered into by the parties contains a jury waiver provision, Defendant failed to seasonably assert the jury waiver in this action. Indeed, as recently as June 5, 2024, counsel for the parties appeared for an initial pre-trial conference and this Court asked, “I saw that a note of issue was filed yesterday in which the plaintiff demanded trial by jury on all issues. Is there any disagreement about the jury trial? You have a certain number of days to move to strike it.” Defendant’s counsel responded: “No disagreement about the right to a jury trial.” On September 13, 2024, the parties further agreed to a stipulation, which was so ordered by the Court, settling forth the schedule for pre-trial submissions, including dates for jury selection.
Defendant now submits that its counsel only recently noticed the jury waivers when preparing for mediation, but this is insufficient to justify striking the jury demand at this late stage of the case. Plaintiffs have consistently sought a jury trial in this action by demanding it in their Complaint, filed in 2017, and by demanding a jury trial in the Note of Issue filed by the Plaintiff on June 4, 2024. And the jury waiver certainly was not hidden from Defendant or its counsel – it is set forth in plain language in the contract that is at the center of this case. Nevertheless, Defendant did not raise this issue with the Court until three months before the scheduled start of the trial.
This action is approximately seven years old, and it involves disputes over specific contractual provisions in the Lease Agreement. The jury waiver is set forth in the contract. Defendant failed to assert that waiver until shortly before trial, after having remained silent and then confirming the jury trial in open court. Under these circumstances, Defendant’s belated effort to assert the contractual jury waiver is unavailing.
(Internal quotations and citations omitted).