688 N.Y.S.2d 548 | N.Y. App. Div. | 1999
—Order, Supreme Court, New York County (Lewis Friedman, J.), entered December 5, 1997, which granted plaintiff’s motion to strike defendant-intervenor’s demand for a jury trial and granted plaintiffs motion for partial summary judgment, dismissing defendant-intervenor’s third counterclaim for a declaration that plaintiff is the alter ego of the defendant Trust, unanimously modified, on the law, plaintiffs motion for partial summary judgment denied and the third counterclaim reinstated, and otherwise affirmed, without costs.
Under these circumstances, we do not find the counterclaim for a declaratory judgment to be a misuse of such relief (see, Abate v All-City Ins. Co., 214 AD2d 627, 629) or that prosecution of such counterclaim would subject plaintiff to inequitable treatment, due to his not being a party to the action on the note. Although defendant-intervenor was previously aware of plaintiffs ties to the Trust, it only became apparent after the trial and the unexpected, dubiously-timed confession of judgment that plaintiff should have been joined as a necessary party to the action on the note.
Intervenor’s remaining counterclaims, seeking to set aside the confession of judgment as a fraudulent conveyance and to enjoin plaintiff from enforcing the judgment, are equitable in nature and therefore resulted in a waiver of the right to a jury trial (Phoenix Garden Rest. v Chu, 234 AD2d 233, 234; cf., Cadwalader Wickersham & Taft v Spinale, 177 AD2d 315). Contrary to intervenor’s argument, the equitable relief sought is not incidental to any legal claim asserted in this action. Concur — Rosenberger, J. P., Williams, Mazzarelli and Saxe, JJ.