Opinion
527N
April 25, 2002.
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 defendant's motion to strike plaintiffs' jury demand in its entirety, and otherwise affirmed, without costs.
Andrea Fishkin, for plaintiffs-respondents.
Franklin R. Kaiman, for defendants-appellants.
Before: Nardelli, J.P., Buckley, Ellerin, Lerner, Rubin, JJ.
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 Assocs. v. Sherry-Netherland, Inc., 273 A.D.2d 14; Phoenix Garden Rest. v. Chu, 234 A.D.2d 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 A.D.2d 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.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.