Nieves v. Stephens — 85 Misc. 2d 900

Majority

p. 900

Joseph P. Nieves et al., Respondents, v Mary Stephens, Appellant.

Supreme Court, Appellate Term, First Department,

February 11, 1976

p. 901

Donald Grajales, Alfred Levine and James S. Braude for appellant.

The court below erred in denying to tenant her right to a trial by jury. The relevant language of section 745 of the Real Property Actions and Proceedings Law is unequivocal and, as such, a demand for the rights contained therein, if timely, is not addressed to the discretion of the court. As long as triable issues of fact are raised, of which the instant proceeding contains a plethora, a court’s investigation into the merits of the case and/or its consideration of the fiscal difficulties presently faced by the City of New York is improper and unnecessary.

Moreover, "As a poor person, she may not be required to pay a jury fee (CPLR 1102, subd [d])” (Hotel Martha Washington Mgt. Co. v Swinick, 66 Misc 2d 833 , 834). Order entered December 2, 1975, reversed without costs.

Concur: Dudley, J.P., Hughes and Riccobono, JJ.

Cases cited

Hotel Martha Washington Management Co. v. Swinick 66 Misc 2d 833 N.Y. App. Term 1971-06-16 at 834 p. 901