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Objectant Pro Se Moves for Order Granting Trial By Jury

In this contested probate proceeding, objectant pro se, moves for an order granting her a trial by jury. The proceeding was commenced by petitioner on December 15, 2005. Respondent filed objections to probate on August 3, 2006.The decedent died testate on October 24, 2005. Petitioner is decedent’s sister; she is a distributee, as well as the nominated executor and residuary beneficiary under the propounded instrument dated May 11, 1974. Respondent is a distributee; she is a daughter of one of the decedent’s pre-deceased brothers. She does not receive anything under the propounded instrument.

The respondent asserts that she verbally requested a jury trial at conferences before two different court attorney-referees and was “told that the conference would be first.”1 She contends that she was not informed that a jury demand had to be in writing, although she also states her belief that she “signed for this.” Had Katherine advised the court that she wanted a jury trial, she would have been advised to file a jury demand.
The issue in this case is whether respondent’s motion for an order granting her a trial by jury should be granted.

The court said that under SCPA 502 (2)(a) states that “each respondent demanding a jury trial must do so in his answer or objections.” It is on this basis that petitioner opposes respondent’s request. Her attorney also refutes Katherine’s assertion that she verbally requested a jury trial. Petitioner’s attorney states that the “only discussion about a jury trial was raised at a court conference on February 8, 2008.” He states that prior to that date, respondent had insisted the matter be heard by the judge. Petitioner’s attorney also asserts that respondent’s actions have delayed the proceeding and prejudiced the estate.

A party who fails to timely demand a jury trial is deemed to have waived the right. However, the court has the discretion to relieve the party from the waiver and allow the filing of a late jury demand if it does not cause undue prejudice to the other parties, if the delay is a short one. Here, the delay is a lengthy one, eighteen months. Courts have generally taken a hard line and disallowed nunc pro tunc jury demands regardless of actual prejudice or lack thereof to the other party (Matter of Bosco, 141 AD2d 639 [2d Dept 1988][“[t]he petitioner’s misunderstanding of the law and alleged reliance on erroneous legal advice do not warrant the granting of such an untimely demand [eighteen-month delay] regardless of the lack of prejudice to the respondent”]; Fils v. Diener, 59 AD2d 522 [2d Dept 1977] [excusing five-month delay was an abuse of discretion]; Zelvin v. Pagliocca, 32 AD2d 561 [2d Dept 1969] [four-and-one-half month delay]). This is true even in the case of a pro se litigant (Matter of Fruchtman, NYLJ, Nov. 28, 1997, at 34, col 3 [Sur Ct, Kings County] [two-and-one-half-year delay]).

In her moving papers, respondent again asserts that one of the court attorney-referees is “in harmony” with respondent’s attorney. This assertion was the subject of a prior decision (dec no. 666, October 30, 2007) of the court, which denied respondent’s motion for disqualification of the court attorney-referee because respondent did not assert any of the statutory disqualifications set forth in section 14 of the Judiciary Law to support her motion and because the record did not reveal any other basis on which the court might be inclined to assign a different court attorney to the case.

In this case, respondent did not serve or file a timely jury demand. Indeed, she first requested a jury trial approximately eighteen months after she filed objections to the probate of the propounded instrument. Accordingly, her motion for a jury trial is denied. This is the decision and order of the court.

The rule is that, a party who fails to timely demand a jury trial is deemed to have waived the right. However, the court has the discretion to relieve the party from the waiver and allow the filing of a late jury demand if it does not cause undue prejudice to the other parties, if the delay is a short one.

If you want to file an objection in the probate of a will, seek the representation of Stephen Bilkis and Associates.

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