Majority
In an action to recover unpaid legal fees, the defendant ap
Ordered that the order is affirmed, with costs.
The Supreme Court did not improvidently exercise its discretion in denying the defendant’s motion pursuant to CPLR 4102 (e) for leave to serve and file a late demand for a jury trial. A motion for such relief must be based upon a factual showing that the earlier waiver of that right was the result of either inadvertence or other excusable conduct indicating a lack of intention to waive such a right (see Fischer v RWSP Realty, LLC, 53 AD3d 595 , 597 [2008]; Sumba v Sampaio, 44 AD3d 648 [2007]; Hyatte v G.B.W. Glenwood Dental Adm’rs, Inc., 8 AD3d 233 [2004]). The defendant failed to make such a factual showing (see Matter of Bosco, 141 AD2d 639 [1988]). Mastro, J.P., Fisher, Florio and Eng, JJ., concur.
Cases cited
- Fischer v. RWSP Realty, LLC 53 AD3d 595 at 597 p. 887
- Sumba v. Sampaio 44 AD3d 648 p. 887