Case Information

DUANE ALLEN et al., Appellants, v JOHN R. BERRY, Also Known as JOHN BERRY, Respondent, et al., Defendants.

Appellate Division of the Supreme Court of the State of New York, Fourth Department

841 NYS2d 815

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department from an order of the Supreme Court, Cayuga County (Dennis M. Kehoe, A.J.), entered September 8, 2006. The order determined that defendant John R. Berry, also known as John Berry, is entitled to a trial by jury.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs.

Memorandum: Plaintiffs commenced this action seeking specific performance of an agreement pursuant to which John R. Berry (defendant) agreed to convey certain premises to them or, alternatively, they sought money damages. The parties thereafter stipulated to dismiss the claim for money damages and defendant filed a voluntary petition for bankruptcy, thereby automatically staying the action for specific performance. Bankruptcy Court modified the automatic stay to the extent of allowing the state action to proceed in order to determine whether there was a valid and enforceable contract and whether defendant's undertaking should be cancelled. We agree with plaintiffs that Supreme Court erred in determining that defendant is entitled to a jury trial. Pursuant to the terms of the parties' stipulation, "the sole remaining issue relate[s] to plaintiffs' claim for specific performance, a matter which is not for jury determination" (Perfetto v Scime, 182 AD2d 1126, 1126 [1992]; see CPLR 4101). Present—Hurlbutt, J.P., Martoche, Smith, Fahey and Pine, JJ.