Cowan v. Stubblebine , 73 A.D.2d 750 ( 1979 )

Appeal from a judgment of the Supreme Court in favor of plaintiff, entered October 19, 1978 in Ulster County, upon a decision of the court at Trial Term, without a jury. Seeking to recover certain chattels allegedly wrongfully detained by defendant and also damages for their alleged wrongful detention, plaintiff instituted this action by the service of summons and complaint on June 9, 1977. When the matter was called for trial on the morning of October 12, 1978, however, she abandoned her cause of action for damages and requested a nonjury trial. Upon consulting with his attorney, defendant then expressly waived through his attorney any right which he had to a jury trial, and the case was adjourned with the taking of proof scheduled to commence that same day at 1:30 p.m. When the court reconvened that afternoon and the trial was about to begin, however, defendant made last minute requests for a jury trial and for an adjournment so that he could obtain new counsel and have available to testify witnesses who were not then present. Both these requests were denied, and the matter was tried without a jury with the result that a judgment was entered in favor of plaintiff. On this appeal, defendant argues solely that the trial court erred in denying him a jury trial. We disagree. Even assuming, arguendo, that defendant had a right to a jury trial in this instance, a doubtful proposition since his defense was apparently equitable in nature (see CPLR 4101), it is nonetheless clear that he intentionally and intelligently waived a jury trial upon the advice of counsel and that his waiver was the product of neither inadvertence nor procedural error. Moreover, the granting of his request to revoke his waiver would have resulted in undue hardship, delay and prejudice to plaintiff who had traveled from southern New Jersey for the scheduled commencement of the trial on October 12, 1978. Under these circumstances, the court plainly did not abuse its discretion in proceeding to trial without a jury (CPLR 4102, subd [e]; Heller v Hacken, 40 AD2d 1012; cf. International Min. Corp. v Aerovías Nacionales De Colombia S. A., 49 ÁD2d 855). Judgment affirmed, without costs. Mahoney, P. J., Greenblott, Kane, Main and Mikoll, JJ., concur.