Lee v. Rockefeller Group, Inc. ( 1992 )

OPINION OF THE COURT

Per Curiam.

Judgment entered December 17, 1990 reversed, without costs, and the matter remanded to the regular part of Civil Court for a jury trial.

This small claims action seeks recovery for property damage to claimant’s automobile allegedly sustained while the car was garaged in a parking facility owned by the corporate defendant. It is alleged that claimant’s removable car radio was stolen as a result of the defendant’s negligence. Upon receipt of the underlying statement of claimant’s cause of action, defendant timely filed with the court a demand for a trial by jury along with the requisite jury fee and undertaking (see, CCA 1806). The defendant’s jury demand was supported by an attorney’s affidavit stating that the requested jury trial was "intended in good faith” and specifying the issues of fact to be tried, including the connection, if any, between defendant and the alleged property damage, the extent of claimant’s comparative negligence, and claimant’s "credibility”. The substance of the affidavit was as detailed as reasonably could be expected in response to the bare bones allegations of the informal, single-sentence pleading underlying the small claim. Although the better practice would have been for defendant to submit an affidavit of a corporate officer or employee in support of its jury demand, the thorough and complete affidavit of counsel offered here was in substantial compliance with CCA 1806 and was sufficient to preserve the defendant’s fundamental right to a jury trial. Since it was improper to try the case without a jury, the judgment ultimately obtained must be set aside and the matter remanded to the regular part of the Civil Court for a new trial before a jury.