If triable issues of fact are raised they shall be tried forthwith and the court shall make a final determination thereon. If issues are triable of right by jury, the court shall give the parties an opportunity to demand a jury trial of such issues. Failure to make such demand within the time limited by the court, or, if no such time is limited, before trial begins, shall be deemed a waiver of the right to trial by jury.
§ 410.Trial
Article 4. Special Proceedings · Last amended 1963 · Last verified July 21, 2026
In one sentenceCPLR 410 requires a special proceeding with genuine triable issues of fact to go to trial right away, gives the parties a chance to demand a jury on any issue triable of right by jury, and treats a missed demand as a waiver of that right.
Full Text of CPLR 410
Plain-English Summary
Most special proceedings end at the summary-determination stage under CPLR 409, decided on the papers with no live testimony. CPLR 410 covers what happens in the smaller set of cases where that stage turns up a genuine factual dispute. Once triable issues of fact are raised, the court has to try them forthwith and make a final determination on them — no separate interval before trial, the way a plenary action might allow.
Where an issue is triable of right by jury, the court has to give the parties a chance to demand a jury trial on it. The court sets the time for that demand; missing it — or, if the court set no time, failing to demand a jury before trial begins — counts as a waiver of the right.
Because CPLR 409 resolves most special proceedings without any need for a trial, CPLR 410 functions as the exception clause: a short set of rules that only comes into play once a real factual dispute survives the summary stage, and that then moves the case to a final, appealable determination as quickly as the dispute allows.
Frequently Asked Questions
What happens if a special proceeding raises real factual disputes?
CPLR 410 requires the court to try those triable issues forthwith and reach a final determination on them, rather than deciding the case summarily on the papers.
Can I get a jury trial in a New York special proceeding?
On any issue triable of right by jury, yes. CPLR 410 requires the court to give the parties an opportunity to demand a jury trial of those issues.
How do I demand a jury trial in a special proceeding?
Within whatever time the court limits for the demand. If the court sets no such time, the demand has to come before trial begins.
What if I miss the deadline to demand a jury?
CPLR 410 treats a failure to demand within the time the court set — or before trial begins, if no time was set — as a waiver of the right to a jury trial.
Does CPLR 410 delay resolution of the whole proceeding?
Only the part with a real dispute. It applies once triable issues of fact are raised, and even then it requires those issues to be tried forthwith rather than put off.
Advisory Committee Notes
In the event of partial summary determination under new CPLR rule 409(b), the issues remaining would be tried under this section. The court could make an order in the nature of a pretrial order which would specify the issues to be tried, define the scope of trial and remove from the case facts which are not in dispute or which are incontrovertible. Unlike new CPLR § 2218 which requires the court to specify the issues to be tried, rule 409(b) is permissive. Thus limited, the trial should proceed forthwith, i.e., at the earliest possible date. It is contemplated that special proceedings would be given preference on trial calendars, depending upon their nature. The provisions of this rule for demand of a jury, based upon the language of new CPLR § 2218 as to the trial of an issue of fact raised on a motion, are applicable only where there is a right to trial by jury.
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: jury trial special proceeding New Yorktrial of triable issues special proceedingwaiver of jury demand NYCPLR 410 trialspecial proceeding factual dispute trial