Pro Bono Barrister: Hon. Schmidt denies late request for jury

January 21, 2014 By Charles F. Otey, Esq. Brooklyn Daily Eagle
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Kings Justice David Schmidt is not only known for his outstanding work ethic, but he can be meticulous in sifting fact from fiction when one party seeks an  advantage over another. A case in point appeared recently in the New York Law Journal, wherein defendant Lachman wanted Justice Schmidt’s permission to file a late jury notice a full seven months after the statutory deadline.

A lot of maneuvering goes on with these notices, trial lawyers know. Some plaintiffs want to skip the expense of the jury demand, hoping that the defendant (usually an insurance company) will pay to file it on their own.

In this personal injury case (Philip V. Lachman) the defendant claimed that it was simply a case of law office, innocent excusable neglect. While the motivations of defendant in not filing weren’t discussed in the NYLJ summary, trial lawyers know that usually in Kings County personal injury trials, the plaintiff is the party insisting on trial by jury.

Clearly, plaintiffs preferred trial without jury here and argued that they would be unduly prejudiced if defendants’ motion were granted. In denying the motion, as noted in the NYLJ on Jan. 6, “the Second Department [has] held that defendant’s explanation that she failed to realize the note of issue was filed with a request for a non-jury trial was an inadequate excuse.”

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Justice Schmidt has a reputation as a tough but fair judge. His ability to reach meaningful results in the most contentious of circumstances was very evident back in the Civil Court Trial Part where he helped then-Judge Gerard Rosenberg dispose of hundreds of cases which would have otherwise crammed the calendar.

When the Hon. Rosenberg ascended to the Supreme Court the “Mensch For The Bench” (so described on his campaign literature) ran for and won a Kings Civil Court race in Southwestern Brooklyn. His opponent in the Democratic primary was Bay Ridge attorney Matthew D’Emic. (Historic note: Years earlier, future jurist D’Emic had belonged to an anti-Vietnam War political reform club known as the Bay Ridge Independent Democrats. Other active members included current Democratic Assemblyman Peter Abbate and current Bensonhurst Democratic leader Joe Bova.)

Later, the one-time Democratic primary opponents both came to serve on the Kings Supreme Court as two of the most admired jurists in the city.

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