(a) Demand. Any party may demand a trial by jury of any issue of fact triable of right by a jury, by serving upon all other parties and filing a note of issue containing a demand for trial by jury. Any party served with a note of issue not containing such a demand may demand a trial by jury by serving upon each party a demand for a trial by jury and filing such demand in the office where the note of issue was filed within fifteen days after service of the note of issue. A demand shall not be accepted for filing unless a note of issue is filed in the action. If no party shall demand a trial by jury as provided herein, the right to trial by jury shall be deemed waived by all parties. A party may not withdraw a demand for trial by jury without the consent of the other parties, regardless of whether another party previously filed a note of issue without a demand for trial by jury.
§ 4102.Demand and waiver of trial by jury; specification of issues
Article 41. Trial by a Jury · Last amended 1991 · Last verified July 21, 2026
In one sentenceSection 4102 spells out how a party demands a jury trial by filing a note of issue with a jury demand or responding within fifteen days, lets a party limit the demand to specific issues, and sets out the narrow ways the right can be waived.
Full Text of CPLR 4102
(b) Specification of Issues. In his demand a party may specify the issues which he wishes tried by jury; otherwise he shall be deemed to have demanded trial by jury of all issues so triable. If he has demanded trial by jury of only some of the issues, any other party within ten days after service of the demand may serve and file a demand for trial by jury of any other issues in the action so triable.
(c) Waiver. A party who has demanded the trial of an issue of fact by a jury under this section waives his right by failing to appear at the trial, by filing a written waiver with the clerk or by oral waiver in open court. A waiver does not withdraw a demand for trial by jury without the consent of the other parties. A party shall not be deemed to have waived the right to trial by jury of the issues of fact arising upon a claim, by joining it with another claim with respect to which there is no right to trial by jury and which is based upon a separate transaction; or of the issues of fact arising upon a counterclaim, cross-claim or third party claim, by asserting it in an action in which there is no right to trial by jury.
(d) Local Rules. The chief administrator of the courts may by rule provide that a party shall be deemed to have demanded trial by jury by filing a note of issue not containing an express waiver of trial by jury.
(e) Relief by Court. The court may relieve a party from the effect of failing to comply with this section if no undue prejudice to the rights of another party would result.
Plain-English Summary
New York does not hand a party a jury automatically just because the law allows one. Section 4102 requires a party to ask for it. The way to ask is to serve the other parties and file a note of issue that contains a demand for a jury trial. If the party who files the note of issue leaves the demand out, anyone else in the case gets fifteen days from service of that note to serve and file a demand of their own. Miss that window, and if no one in the case ever demands a jury, the right is waived by everyone, plaintiff and defendant alike. Once a demand is on file, no party can pull it back without the consent of everyone else in the case.
A party demanding a jury can narrow the request to particular issues rather than the whole case; leaving the demand unqualified means every triable issue goes to the jury. If one party demands a jury on only some issues, any other party gets ten more days to demand a jury on the issues left out.
Waiver works differently from failing to demand in the first place. A party who already demanded a jury can waive that right by skipping the trial, filing a written waiver, or waiving orally in open court, but that waiver does not undo the demand for anyone else in the case without their consent. And joining claims does not put a jury right at risk: asserting a jury-triable claim alongside a separate, non-jury claim, or raising a counterclaim, cross-claim, or third-party claim in a case with no jury right of its own, does not waive the jury trial the other claim was entitled to. The chief administrator of the courts can also flip the local default so that filing a note of issue without an express waiver counts as a jury demand, and subdivision (e) gives the court room to excuse a slip in the paperwork when no one is prejudiced.
Frequently Asked Questions
How do I demand a jury trial in New York?
Serve the other parties and file a note of issue containing a demand for a trial by jury; that filing is what preserves the right.
What happens if the other side files a note of issue without a jury demand?
You have fifteen days after service of that note of issue to serve and file your own demand for a jury trial.
What is the deadline to demand a jury trial in New York?
Fifteen days after service of a note of issue that does not itself contain a jury demand, though the demand can also be included in the note of issue when it is first filed.
What happens if nobody demands a jury trial in my New York case?
The right to a jury trial is deemed waived by every party in the case.
Can I take back my jury demand once I've filed it?
No, a demand for trial by jury cannot be withdrawn without the consent of the other parties, even if you later file a waiver.
Can I limit my jury demand to just some issues in the case?
Yes, you may specify the issues you want a jury to decide; if you don't, you're deemed to have demanded a jury on every issue triable that way.
Does bringing a non-jury counterclaim waive my right to a jury trial on my main claim?
No, section 4102(c) protects a jury-triable claim from waiver when it's joined with a separate claim that carries no jury right, and it protects a counterclaim, cross-claim, or third-party claim the same way.
Advisory Committee Notes
(See also Advisory Committee Notes preceding § 4101, under subheading “Demand and waiver of jury trial generally.”).
This section, which is in large part new, replaces CPA §§ 426, 426-a and 429. It is similar to Federal rule 38.
Subd (a) and subd (b). Under former law, distinction was made between two types of action in which the plaintiff was entitled to a jury trial: those specified in § 425 and others. CPA § 425 specified seven types of action in which issues of fact must be tried by jury. These are included as subparagraphs 1 and 2 of CPLR § 4101. In various other types, a party is entitled by Constitution or statute to trial by jury. See notes to § 4101.
Under the former law, while there was no requirement of demand or application for jury trial in the seven types of action specified in CPA § 425, a party who wanted a trial by jury of issues of fact in an action not specified in CPA § 425 and who was entitled to trial by jury by the Constitution or by express provision of law must have applied upon notice to the court for an order directing all questions arising upon those issues to be distinctly and plainly stated for trial. CPA § 429; Elmira Savings & Loan Ass’n v Spring, 261 App Div 1034, 26 NYS2d 31 (3d Dept), affd without opinion, 287 NY 591, 38 NE2d 387 (1941).
The distinction between the two classes of actions is also carried into the provisions covering waiver. CPA § 426 provided that a party could waive his right to trial of an issue of fact by a jury, in all cases,.
1. by failing to appear; or.
2. by filing with the clerk a written waiver signed by his attorney; or.
3. by oral consent in open court entered in the minutes; or.
4. by moving the trial of the action without a jury or, if the adverse party so moves it, by failing to claim a trial by jury before the production of any evidence upon the trial.
As a fifth method, in one of the actions specified in CPA § 425 pending in the County Court of Nassau county and the Supreme Court in the counties of New York, Bronx, Richmond, Kings, Queens and Nassau, a party could waive his right to trial by jury by serving a copy of a note of issue not containing a demand for jury trial. CPA § 426(5). There were similar provisions for the Supreme Court in Erie county. CPA § 426-a. While these provisions were cast in the form of waivers, they were essentially requirements for a demand.
This section eliminates the distinction between the two classes of action. No reason for the distinction appears in the cases or elsewhere. The section makes it necessary in all actions to demand jury trial. However, the demand need not be made by application to the court as was formerly required by § 429; instead, it must be contained in the note of issue or a written notice served upon the parties. Under this section, failure to demand jury trial is deemed a waiver of the right.
Subd (c). The provisions for actual waiver are also made uniform for all classes of action and throughout the state. The first three modes of waiver listed in § 426 are carried over unchanged into the first sentence of subd (c) of this section except that the requirement that the written waiver be signed by the attorney has been omitted. In view of the fact that contracts to waive juries were valid under former law the restriction made little sense. The uniform provision that failure to demand jury trial shall be deemed a waiver obviates the need for the fourth and fifth modes of waiver specified in § 426.
The second sentence of subd (c) of this section is new. The first clause of this sentence is designed to avoid confusion in the former law. Compare Ehrle v Sutton Place Apartments, Inc. 137 Misc 122, 241 NY Supp 386 (Sup Ct), affd without opinion, 231 App Div 712, 246 NY Supp 866 (1st Dept 1930) (granting jury trial), with Lavisch v Schwartz, 235 App Div 18, 256 NY Supp 416 (3d Dept 1932) (denying jury trial). See The Right to Trial by Jury, at page 574, infra.
It is possible to avoid difficulty by eliminating the concept of waiver from the area of joined claims. Where legal and equitable claims arise from the same facts, the waiver doctrine is unnecessary because there is no constitutional right to jury trial; the court may award damages as incidental to the equitable claim. Where the claims arise from different facts, this section would codify the majority rule that no waiver resulted. This is desirable because, were plaintiff to risk a holding that he has waived his right to jury trial, he might bring separate actions. The rules should encourage the determination of as many claims as possible in a single action. See CPLR § 601.
The second phrase of the second sentence of subd (c) is in accord with CPA § 424. That section provided that the mode of trial of an issue of fact arising upon a counterclaim should be the same as if it had arisen in an action brought by the defendant against the plaintiff. See also CPLR § 3019(f). With respect to an equitable counterclaim interposed in a legal action, the rule stated in former § 424 is not changed since CPLR § 4101 provides that equitable defenses and counterclaims are triable by the court. With respect to a legal counterclaim interposed in an equitable action, subd (c) of this section insures the continuation of the former rule that both parties have a right to trial by jury of the legal counterclaim. Sefranka v Sefranka, 190 Misc 539, 74 NYS2d 516 (Sup Ct 1947); Herb v Metropolitan Hospital & Dispensary, 80 App Div 145, 80 NY Supp 552 (1st Dept 1903); Fout v Wolfe, 231 App Div 11, 245 NY Supp 505 (4th Dept 1930).
Subd (d) of this section gives the Appellate Division in each department the right to make a separate rule requiring an express waiver rather than an express demand.
The court is explicitly given power, in subd (e) of this section, to relieve a party of the effect of failure to comply with any portion of the section if the rights of another party are not thereby prejudiced. This provision is based upon the last sentences of CPA §§ 426(5) and 426-a.
The adoption of the new procedure set forth in this section requires changes in certain statutes relating to jury trial contained in the Consolidated Laws.
The methods prescribed for waiver in this section, like those prescribed in former § 426, are not exclusive. A party may waive his right to jury trial under general principles of law applicable to the subject of waiver, even though the case is not provided for by any statute. Baird v Mayor, 74 NY 382 (1878); Lee v Tillotson, 24 Wend 337 (NY Sup St 1840); see R. J. Marshall, Inc. v Turner Construction Co. 207 Misc 490, 491, 137 NYS2d 541, 543 (Sup Ct 1954), affd without opinion, 285 App Div 1164, 141 NYS2d 824 (2d Dept 1955).
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1968, ch 19, § 2; L 1986, ch 355, § 11, eff July 17, 1986; L 1990, ch 582, § 1, eff Jan 1, 1991.
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
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