Gluck v. Wiroslaw

Decision Date19 March 1982
PartiesJoel GLUCK, Petitioner, v. Menashe WIROSLAW, Defendant.
CourtNew York City Court

Burton Gelfand, New York City, for petitioner.

Steven M. Bernstein, Brooklyn, for defendant; Shirley Hochhausen, Brooklyn, of counsel.

DECISION and ORDER

HERBERT KRAMER, Judge.

Does service of an Answer and Jury Demand in a Housing Court non-jury trial part survive a claim of lateness and waiver of jury trial?

A holdover proceeding was instituted by service of the Notice of Petition and Petition on August 8, 1981. The Notice of Petition did not contain an optional demand for an answer three days before the date set forth for the hearing. R.P.A.P.L. § 743. The initial hearing was adjourned by consent. No mention was made as to whether the date for answer was similarly extended.

On the adjourned date, the case appeared in Part 35, the calendar part of the Landlord-Tenant Court. Before the calendar call, as a matter of course, the Clerk instructs that the parties are to answer "Ready" if they are indeed ready for trial, whereupon they are sent for trial to a Housing Court Judge; otherwise, with few exceptions, they are to answer "Application" and wait until the end of the calendar call to make their application before the Part 35 Judge.

We note preliminarily that had the above procedure been followed, the confusion of issues attending this motion would not have arisen.

On the adjourned date when this case appeared in Part 35, both sides answered "Ready". They were sent for trial to Housing Court Judge Dubinsky, whereat the tenant served an answer with demand for trial by jury. Because a Housing Court Judge lacks jurisdiction over jury trials, Judge Dubinsky sent the matter back to Part 35, for reassignment. Upon its return to Part 35, an order was entered allowing payment of the jury fee nunc pro tunc by Judge Tavormina.

This motion seeks to strike that jury demand on the ground of untimeliness.

R.P.A.P.L. § 743 provides as follows:

Except as provided in section 732, relating to a proceeding for non-payment of rent, at the time when the petition is to be heard the respondent, or any person in possession or claiming possession of the premises, may answer, orally or in writing. If the answer is oral the substance thereof shall be indorsed upon the petition. If the notice of petition was served at least eight days before the time at which it was noticed to be heard and it so demands, the answer shall be made at least three days before the time the petition is noticed to be heard and, if in writing, it shall be served within such time; whereupon any reply shall be served at least one day before such time. (Emphasis added).

Where the three day demand is made, respondent's answer is due before the initial court appearance. Thus, an adjournment of the hearing will not automatically extend the time for answer. This must be accomplished by separate stipulation.

In the case at bar, however, there was no such demand in...

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14 cases
  • 1240 Sheva Rlty Assoc. v. Serrano
    • United States
    • New York Civil Court
    • 14 Marzo 2023
    ...grounds 223 A.D.2d 617 (2d Dept 1996); Rochdale Village Inc. v. Harris, 172 Misc.2d 758 (Civ Ct Queens County 1997); Gluck v. Wiroslaw, 113 Misc.2d 499 (Civ Ct Kings County 1982). This proceeding was adjourned for the filing of this motion and the proposed answer is included in the papers f......
  • Aviles v. Santana, 26087/2017.
    • United States
    • New York Civil Court
    • 5 Julio 2017
    ...to file an answer is extended by adjournment of the proceeding unless "arrangements to the contrary" have been made. Gluck v. Wiroslaw (113 Misc.2d 499, 501, 449 N.Y.S.2d 567, 568 [Civ Ct Kings Co 1982] ); see also City of New York v. Candelario (156 Misc.2d 330, 601 N.Y.S.2d 371 [App Term ......
  • 974 Anderson LLC v. Davis
    • United States
    • New York Civil Court
    • 14 Diciembre 2016
    ...Dep't 1993], affd in part, revd in part on other grounds 223 A.D.2d 617, 637 N.Y.S.2d 311 [2nd Dep't 1996] ), citing Gluck v. Wiroslaw (113 Misc.2d 499, 449 N.Y.S.2d 567 [Civ Ct Kings Co 1982] ). As explained by the Hon. Sabrina Kraus, "pursuant to RPAPL § 743 the answer in a holdover proce......
  • Mohan v. Balgobin
    • United States
    • New York Civil Court
    • 6 Febrero 2023
    ...dismissed through motion practice. This rational is unavailing. Respondents' suggestion the court seek guidance from (Gluck v. Wiroslaw, 113 Misc.2d 499, 449 N.Y.S.2d 567 [NY City Civ. Ct. 1982]) is also unavailing. In Wiroslaw the Respondent served a late answer that was deemed timely as n......
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