726 N.Y.S.2d 852 | N.Y. App. Div. | 2001
—Order, Supreme Court, New York County (Barry Cozier, J.), entered October 3, 2000, which, in an action by plaintiff cooperative corporation against defendant sponsors of the cooperative conversion arising out of defendants’ alleged breaches of the offering plan and a commercial lease between the parties, denied defendants’ motion to strike plaintiff’s jury demand, unanimously affirmed, with costs.
The motion court correctly held that the primary character of the first 14 causes of action in the original complaint, all of which related only to the offering plan, was legal in nature, notwithstanding that two of these causes of action originally demanded an accounting. The so-called accountings were sought not for purposes of equity but merely to determine the amount of money damages necessary to fully compensate plaintiff, and, accordingly, did not result in a waiver of the right to a jury trial (see, Cadwalader Wickersham & Taft v Spinale, 177 AD2d 315). The motion court also correctly held that no such waiver resulted from plaintiff’s 15th cause of action seeking rescission of the commercial lease it gave defendants at the time of the cooperative closing. The alleged breaches of the lease arise out of events that occurred after the conversion, and are essentially unrelated to the alleged breaches of the offering plan, notwithstanding that plaintiff’s claims with respect to these two separate instruments may involve overlapping proof (see, Matter of Aronoff, 171 Misc 2d 172, 176, citing, inter alia, Regan v Martindale, 72 AD2d 676; cf., Matter of SCM Corp. [Fisher Park Lane Co.], 40 NY2d 788, 791-792). Accordingly, legal relief for breaches of the offering plan and equitable relief for breaches of the lease could be sought in a single complaint without waiver of the right to a jury trial (CPLR 4102 [c]). We have considered defendants’ other arguments and find them unavailing. Concur — Rosenberger, J. P., Andrias, Lerner, Saxe and Friedman, JJ.
