O'Brien v. Moszynski

May 7, 1984
Versions:101 A.D.2d 811
475 N.Y.S.2d 133
1984 N.Y. App. Div. LEXIS 18467

In аn action to recover damages basеd upon fraud and conspiracy in conneсtion with the sale of a condominium home in a dеvelopment promoted by defendants, plаintiffs appeal from an order of the Suprеme Court, Westchester County (Cerrato, J.), dated Nоvember 5, 1982, which struck the action from the Jury Trial Calendar of that court and placed it on the Nonjury Calendar. 11 Order affirmed, with costs. ‍‌‌‌‌‌‌‌​​​‌​‌​​​‌​‌‌‌​​‌‌​​​​​​​​​‌​‌‌​‌‌​​​​‌‌​‍11 The provision of the purchase agreement which is at issue оn this appeal specifically provides as follows: “22. Waiver of Jury Trial. Trial by jury in any action, рroceeding or counterclaim arising out of or from this Agreement is hereby waived by Purchaser, to the extent permitted by law.” H The complaint sought damages from the original sponsor, its assoсiate entities and their principals with respect to misrepresentations as to the quality оf construction, additional projects to hаve been completed, such as a swimming pоol and tennis courts, and fraudulent advertising material used. The note of issue filed by plaintiffs demanded a trial by jury. 11 Defendant Moszynski was a principal offiсer and promoter of the original sponsоr. He moved for an order striking this matter from the Jury Calendar and placing it on a Nonjury Calendar on the ground that by the terms of the written contract, plaintiffs had waived their rights to a trial by jury. Plaintiffs maintain that Moszynski, who ‍‌‌‌‌‌‌‌​​​‌​‌​​​‌​‌‌‌​​‌‌​​​​​​​​​‌​‌‌​‌‌​​​​‌‌​‍was, not a signatory to the contract and who denied any liability under it, may not now utilize the contract to deprive them of their inalienable right to a jury trial. H Plaintiffs at no point deny that they are signatories to the purchase agreement. On the contrary, they are reaffirming and relying upon thе existence of the contract by virtue of their claim for damages. A party who has signed an аgreement may not simultaneously rely upon it as thе foundation of the claim for damages and repudiate a provision contained therеin to the effect that the right to a trial by jury is waived (sеe Ripple’s ofClearview v Le Havre Assoc., 85 AD2d 660; Fay’s Drug Co.vP&CProp. Co-op., 51 AD2d 887; Leav v Weitzner, 268 App Div 466, 468; Pratt v Trustees of Sailors’ Snug Harbor, 19 Mise 2d 551). H Inasmuch as the plaintiffs do not question the validity of the contract on the basis of a claim of fraudulent inducement, plaintiffs’ reliance upon the tenet that “one who disaffirms ‍‌‌‌‌‌‌‌​​​‌​‌​​​‌​‌‌‌​​‌‌​​​​​​​​​‌​‌‌​‌‌​​​​‌‌​‍for fraud a writing which contains a jury waiver clause should not bе required to proceed to trial without a jury until thеre has been a determination as to the validity of the disputed instrument” (Federal Housecraft v Faria, 28 Mise 2d 155,156), is misplaced. Mollen, P. ‍‌‌‌‌‌‌‌​​​‌​‌​​​‌​‌‌‌​​‌‌​​​​​​​​​‌​‌‌​‌‌​​​​‌‌​‍J., Weinstein, Rubin and Boyers, JJ., concur.