This landlord-tenant action has been transferred to the undersigned for trial. Jury selection is scheduled to begin today, November 12, 2024. Defendant, 126 East 36th Street LLC, has made an oral application to strike the jury demand filed by plaintiff, the Government of St. Lucia, on the ground that the underlying lease contains a jury waiver. The application is denied as untimely.

Plaintiff filed its initial note of issue, containing a jury demand, in April 2019. (See NYSCEF No. 16 at 1.) Defendant moved to vacate the note of issue on the ground that further discovery was required (see NYSCEF No. 18); and the parties later stipulated to withdraw the note of issue as premature (see NYSCEF No. 29). In December 2020, plaintiff filed a second note of issue, again containing a jury demand. (See NYSCEF No. 38 at 1.) Defendant again moved to vacate the note of issue. (See NYSCEF No. 39.) The parties then stipulated to the withdrawal of the motion and the prompt completion of outstanding post-note discovery. (See NYSCEF Nos. 47, 48.)

Due to delays stemming from Covid-19, the case was not scheduled for trial until November 2024. As noted above, jury selection was scheduled to begin on November 12. The morning of jury selection, defendant raised for the first time the issue of the jury waiver in the lease, contending that in light of that waiver, this court should strike the jury demand. But the Appellate Division, First Department, has made clear that when, as here, a party waits "until the scheduled date of jury selection" to seek removal of a jury demand, the request should be denied as "unduly prejudicial to plaintiff[] . . . in that, by the time of the motion, the jury demand ha[s] led plaintiff[] to prepare for a jury trial." (Sapp v Propeller Co. LLC, 12 AD3d 218, 219 [1st [*2]Dept 2004].) That the request to strike is based on a jury waiver in a lease is immaterial: "[D]elay in moving to strike an adversary's jury demand may preclude a party from relying on a contractual waiver of the right to trial by jury." (Id.) That principle has added force here, when defendant's second motion to vacate plaintiff's note of issue (which contained a jury demand)—and the stipulation withdrawing that second motion—did not address the jury demand or raise the issue of the jury waiver in the lease.

Plaintiff misplaces its reliance on the First Department's decision in Moyal v Sleppin (139 AD3d 605 [1st Dept 2016]). It is true that Sleppin states that "a motion to strike a demand for a jury trial may be made at anytime up to the opening of trial." (Id. at 605.) The court did not, however, apply that rule in a vacuum, but rather relied on its conclusion that defendants' delay in moving to strike had not been prejudicial under the particular circumstances of the case. And those circumstances are materially different from those presented here.

In Sleppin, the motion court had granted defendants' motion for partial summary judgment; and that ruling was later modified on appeal to restore some of plaintiffs' claims. (See Moyal v Group IX, Inc., 112 AD3d 402, 403 [1st Dept 2013].) A delay in resuming trial proceedings then ensued, and the case had only been back on the trial calendar for a period of months when defendants moved, in advance of trial, to strike the jury demand. (See Sleppin, 139 AD3d at 605-606.) In this case, on the other hand, after plaintiff's filing of the second note of issue, the action waited on the trial calendar for nearly four years before defendant sought to strike the jury demand on the literal morning of jury selection. This case is much more akin to Sapp than to Sleppin.

Accordingly, it is

ORDERED that defendant's application to strike plaintiff's jury demand is denied.