Smalley v. City of Poughkeepsie , 519 N.Y.S.2d 635 ( 1987 )

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Dutchess County (Hillery, J.), entered June 2, 1986, which denied their motion to strike the plaintiffs’ note of issue.

Ordered that the order is reversed, with costs, and the motion is granted.

The plaintiffs originally filed a note of issue indicating that they did not want to have a jury trial. Thereafter, they moved for leave to amend their note of issue so as to demand a jury trial. That motion was denied. They did not seek renewal or reargument nor did they appeal from that order. Instead, they withdrew their original note of issue and, before pretrial disclosure was completed, filed a new note of issue, demanding a jury trial, and stating that disclosure had been completed. The defendants moved to strike the second note of issue, and that motion was denied. This appeal ensued.

The plaintiffs’ only response to the defendants’ arguments on appeal is that the denial of the motion to strike the second note of issue was made by the Justice to whom this case had been assigned under the Individual Assignment System, and that we must defer to her. However, in light of the denial of the plaintiffs’ prior motion to amend their first note of issue, and their failure to appeal therefrom, allowing the second note of issue to stand would be inappropriate. Weinstein, J. P., Rubin, Kunzeman and Kooper, JJ., concur.