Hausner v. Mendelow

Nov 1, 1993
Versions:198 A.D.2d 210
603 N.Y.S.2d 498
1993 N.Y. App. Div. LEXIS 10190

—In an action, inter alia, for the dissolution of a partnership pursuant to Partnership Law § 63, the plaintiff appeals from an order of the Supreme Court, Nassau County (Molloy, J.), dated August 8, 1991, which granted the defendants’ motion, pursuant to CPLR 4101, to strike the plaintiff’s demand for a trial by jury.

Ordered that the order is affirmed, with costs.

By joining equitable claims for an accounting and dissolution of a partnership with a legal claim to recover damages for conversion, the plaintiff waived his right to a jury trial. Accordingly, the motion to strike the plaintiff’s demand for a trial by jury was properly granted (see, Zimmer-Masiello, Inc. v Zimmer, Inc., 164 AD2d 845; Gabbay v Ratchik, 60 AD2d 593). The cases relied on by the plaintiff (see, e.g., Azoulay v Cassin, 103 AD2d 836) hold only that a defendant shall not be deemed to have waived his right to a jury trial on issues so triable as a result of a plaintiff’s joinder of legal and equitable claims in the complaint. Mangano, P. J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.