Green v. Siben (104 A.D.2d 923, 1984)

— In a legal malpractice action, defendants appeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated December 12, 1983, which granted plaintiff’s motion, in effect, for an extension of time to file a demand for a jury trial.

Order reversed, with costs, motion denied and matter restored to the Nonjury Trial Calendar.

A motion for an extension of time to file a demand for a jury trial must be based upon a factual showing that the earlier waiver of that right was the result of either inadvertence or other excusable conduct indicating a lack of intention to waive such right (see Joseph v Exxon Corp., 83 AD2d 549). In the case at bar, plaintiff’s counsel made a specific, intentional request for a nonjury trial based upon a strategy decision and plaintiff is bound by that decision. Thus, in this case, the waiver of a jury trial was intentional and not inadvertent. Moreover, there was no valid excuse for delaying the application until the very eve of trial. Therefore, under the circumstances, it was an abuse of discretion to, in effect, grant plaintiff an extension of time to file a demand for a jury trial. Lazer, J. P., Brown, Boyers and Eiber, JJ., concur.