Muhl v. Vesta Fire Insurance — 297 A.D.2d 213

Majority

p. 213

Edward J. Muhl, Superintendent of Insurance of the State of New York, as Liquidator of Midland Insurance Com

p. 214

pany, Respondent, v Vesta Fire Insurance Corp., as Successor in Interest to Interstate Fire Insurance Company, Appellant.

[745 NYS2d 691]

Over defendant’s opposition, the IAS court initially granted plaintiffs motion, in October 2000, to sever certain (Pool I) claims for referral to a referee; but in his subsequently filed note of issue, dated February 2001, plaintiff inexplicably demanded a jury trial on that issue. Two months later, plaintiff moved to amend the note of issue to omit his request for a jury trial.

Once a party has demanded a jury trial, he may not withdraw that demand without the consent of the other parties (CPLR 4102 [a]). In granting plaintiffs motion to amend the note of issue, the IAS court found lack of prejudice to defendant (see, CPLR 4102 [e]) based on the circumstance that the court had already ordered this issue to be tried by a referee. However, that prior referral order was recently reversed on appeal by this Court ( 288 AD2d 108 ), subsequent to the IAS court’s latest ruling. Defendant thus would be prejudiced by losing its constitutional right to a jury trial on this issue of money damages. Concur — Andrias, J.P., Buckley, Rosenberger, Wallach and Gonzalez, JJ.