I would affirm the order of the Appellate Term.
Notwithstanding the sound legal reasoning expressed by my learned colleagues in the majority opinion, I am compelled to reach a contrary conclusion in view of the peculiar circumstances of this case. The commencement of separate actions for the recovery of attorney’s fees, the ordering of a joint trial of two actions, without consolidation, before a single arbitrator and the rendition of two separate awards, one in favor of plaintiff and one in favor of defendant, created a situation which was confusing at best.
In action No. 1, an award in favor of plaintiff Chase in the amount of $300 was made on June 11, 1981. This *31award was signed and dated by the arbitration commissioner and filed in the office of the clerk of the court on June 19, 1981. Judgment on the arbitration award was thereafter entered. As respects action No. 2, an award was made in favor of defendant Scalici, dismissing the complaint and allowing her $300 on her counterclaim. Plaintiff in action No. 2, the law firm of Skoy, Lowell, Chase & Nussbaum, P. C., thereupon applied for a trial de novo. Action No. 2 has apparently been placed on the Trial Calendar.
By notice of motion dated November 19,1981, defendant moved for an order granting her a jury trial de novo of all of the issues involved in the two actions. In support of the motion, defendant averred that the only arbitration case report received by her counsel was the one for action No. 2, in which the plaintiff law firm’s complaint was dismissed and she was awarded $300 on her counterclaim. Defendant’s attorney assumed that said report disposed of the entire case. Although defendant was thereafter furnished with a copy of the report for action No. 1, her attorney was not furnished with a copy of that award.
Defendant was served with a demand for a trial de novo which was allegedly ambiguous in that it could not be determined on its face whether the demand covered both actions or whether it pertained solely to action No. 2. Again, defense counsel was not served with a copy of said notice. Defendant subsequently moved for an order granting a trial de novo with respect to both actions and asserting a demand for a jury, which she had inadvertently failed to do previously in view of the attendant confusion surrounding these proceedings. Defendant’s demand for a trial de novo was made some five months after the arbitration awards were filed.
Recognizing the existence of prior decisions which have uniformly equated a demand for a trial de novo with the filing of a notice of appeal and which have thus held the 30-day period to be nonextendable (Watson v Jarvis, 116 Misc 2d 285; Parker, Clark Assoc. v E S M Data Systems, 108 Misc 2d 827; Helfand v Helfand, 91 Misc 2d 965; McGuire v Bricks, 74 Misc 2d 217), I am of the opinion that the *32circumstances at bar warrant a departure from the rigid implications of such a rule.
As provided in 22 NYCRR 28.12 (b): “If the demandant either serves or files a timely demand for a trial de novo but neglects through mistake or excusable neglect to do one of those two acts within the time limited, the court where the action was commenced or, if the action was transferred, the court to which it was transferred, may grant an extension of time for curing the omission.”
A rigid application of the 3 0-day rule in this case would effectively deprive defendant of her right to a trial by jury prior to her having had an adequate opportunity to exercise that right. To avoid the constitutional implications of compulsory arbitration under 22 NYCRR part 28,1 would interpret section 28.12 as allowing a court to exercise its discretion in determining whether the failure of a party to timely demand a trial de novo was due to excusable mistake or inadvertence or whether that party willfully or intentionally waived the constitutional right to a trial (see Chemical Bank v 1364 Dean St. Corp., 53 AD2d 882; Denig v Seelig, 17 AD2d 948; New York Investors v Laurelton Homes, 230 App Div 712). In my view, evidence of any such willful or intentional waiver on defendant’s part was clearly lacking in this case. In light of the confusion surrounding the joint trial and the rendition of two separate arbitration awards, and given the fact that the constitutional right to a trial is involved, it is my conclusion that the court did not abuse its discretion in extending the time for defendant to file a demand for a trial de novo.
Lazer and Thompson, JJ., concur in the opinion of Titone, J. P.; Weinstein, J., dissents and votes to affirm the order of the Appellate Term, with an opinion.
Upon appeal by permission, order of the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, dated July 22, 1982, and order of the First District Court, Mineóla, Nassau County, dated December 10, 1981, reversed, on the law, without costs or disbursements, and defendant’s motion for leave to file a late demand for a trial de novo denied.