Giammalvo v. 2170-2178 Broadway LLC

Apr 25, 2002
Versions:293 A.D.2d 390
740 N.Y.S.2d 617
2002 N.Y. App. Div. LEXIS 4074

—Order, Supreme Court, New York County (Louis York, J.), entered on or about October 4, 2001, which, in these consolidated actions, inter alia, denied defendants’ motion to strike plaintiffs’ jury demand insofar as to direct that plaintiffs’ fourth, sixth and seventh causes of action be tried by a jury, unanimously modified, on the law, to grant defendants’ motion to strike plaintiffs’ jury demand in its entirety, and otherwise affirmed, without costs.

Most of the relief sought in plaintiffs’ original complaint is equitable in nature. This being the case, plaintiffs waived their right to a jury trial (see, e.g., Sherry Assoc. v Sherry-Netherland, Inc., 273 AD2d 14; Phoenix Garden Rest, v Chu, 234 AD2d 233). While plaintiffs’ fourth cause of action arguably arises from a transaction distinct from those underlying plaintiffs’ remaining causes, it is not thereby excepted from plaintiffs’ waiver, since it, like the balance of the complaint, seeks predominantly equitable relief. Even though many of plaintiffs’ requests for equitable relief may have become moot, the right to a jury trial is not thereby revived (see, Zimmer-Masiello, Inc. v Zimmer, Inc., 164 AD2d 845). We note, in addition, that the legal relief sought in plaintiffs’ sixth and seventh causes of action appears to have become moot by virtue of a settlement between the parties. Concur—Nardelli, J.P., Buckley, Ellerin, Lerner and Rubin, JJ.