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Batter Up

     Regular readers of MondayMonday over the years know that we are frequently moved to write about the sheer wonder of baseball's Opening Day; about its recuperative qualities and its ability to make everything old new again. Perhaps we have moved so emphatically into this advanced age of curmudgeonliness that we can no longer see that forest for the trees. By "trees" we mean aches and pains, daily problems that drain vitality, and the disjunct that comes from relying on a game to justify a smile. However, if we were being philosophical about it (heaven forbid!), we might say that it's less about the game then about the smile.

     There is so damned little to smile about. No matter your political bent -- and we try to avoid such easy picking's in MondayMonday -- being an American is getting very hard. Perhaps we're spoiled. After all, we worry about far less than other countries do. Sure, we should be paying more attention to solving problems we know we can solve, like why any child in the United States should have to go to bed hungry. Seems like that's an easy problem to eliminate in the 21st Century. Since these kids will have to fund our Social Security as we live past 100, we have a rather keen interest in seeing them healthy.

     Yet, it's really about the smile, not what we're smiling about. In a baseball park, as in DisneyWorld, we suspend reality, if even for only 9 innings, and smile. We argue about the game and not about our lives. There are only two sides and most people at a baseball game are only rooting for one to win. We can take a nap at a baseball game and, if we wear sunglasses, no one knows it. On Opening Day, it's a nap in the daytime when we're supposed to be at work. Only kids get to do that. No one goes hungry at a baseball game, where some teams sell hot dogs for only $1. Why? Why not? It's just a game and a hot dog is the cheapest way to buy a smile. What fascinates us about the simplicity of all this is that baseball needs nothing to accomplish this feat, creating a smile. It doesn't need instant replays, bobble-head doll day, mascots firing t-shirt cannons, or pitching-time clocks. Just a hot dog and the game. Oh, and leave your curmudgeonliness at home.

     MondayMonday moves to Rochester this morning and selects a case from the North Country for discussion. In Braun v. Cesareo, 2019 NY Slip Op 01962 [4th Dep't 3/15/19], the issue is simple, but the answer is not and that difficulty produces a long dissenting opinion. The judgment appealed from is large ($21,451,518), but here's that "simple" question: Under CPLR 4102(a) [if no jury trial demanded by plaintiff, defendant may request a jury trial within 15 days of filing of note of issue], may a trial court extend that time by one day in its discretion? The answer is "yes," but here's how AD4 got there.

     Plaintiff did not request a jury trial and filed his note of issue. One day after the 15-day time period stated in CPLR 4102(a), the parties appeared for trial. Following what the Court termed an "extensive discussion off the record" (oh, to be a fly on the wall in those chambers!) the trial court determined that trial by jury had been waived. So, defendants objected and placed their jury demand on the record, which the trial court denied a second time. When the trial court suggested a formal motion, plaintiff objected, reminding the court that it had already denied the motion. The order entered on the record denied defendants' request to file a jury demand nunc pro tunc under CPLR 4102(e) [relief may be granted from waiver if no undue prejudice].

     First off, is the nunc pro tunc order reviewable at all? Was it made via a motion "upon notice" as required by CPLR 5701(a)(2)? The answer:  It doesn't matter. This is an appeal from a final judgment, not an interlocutory order. Such an appeal brings up any non-final order which affects that final judgment, even one note made on notice. While the dissent believes otherwise, the dissent is wrong.

     Now, to the meat of the decision. The legislature saw fit to couple the constitutional right to trial by jury in civil cases with CPLR 4102(e)'s savings clause should a party neglect to demand it in a timely manner. To deny that application in this case was an abuse of that discretion. After all, it was only one day late and although the trial was set to begin on the day of defendants' late application, a jury was present anyway, so granting the application "would not have delayed the trial." Plaintiff made statements indicating that they were ready for a jury trial. Finally, the trial court improperly placed the burden on defendants to explain why they would be prejudiced by a bench trial, rather than why plaintiff would be prejudiced by a jury trial. 

     As mentioned above, the dissent relied on the non-appealability of defendants' motion, claiming that the lack of a sufficient record in a motion not made upon notice makes meaningful appellate review impossible. The problem is, the CPLR does not support that view in appeals from final judgments. The dissenting justice's discussion of that problem, however, is fascinating, if not prevailing. Review of motions not made on notice is fundamentally unfair, the dissenter, maintains. "In short, I have found no clear authority for the proposition that an 'order' procured without compliance with CPLR article 22 is an 'order' as contemplated by CPLR 5501(a)(1) [appeals from non-final orders]."

     At the end of the day, the $21.4M judgment is reversed and a new trial ordered. 




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Jay Breakstone
Jay L. T. Breakstone is one of the foremost appellate attorneys in the country in the field of personal injury. With over 30 years’ experience as a practicing attorney.

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Parker Waichman LLP has been fighting for the rights of victims for over two decades. Parker Waichman LLP is one of the preeminent personal injury law firms in the US.
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