Opinion
Index No. 50759/2014
02-16-2017
CHERYL M. MOLLICA, Plaintiff, v. WILLIAM A. RUZZA, JR., CHRISTOPHER C. MOLLICA, SYNERGIX FUNDING GROUP, LLC, RAYMOND STURINO, IVY HILL COMMODITIES CORP., CAPITAL ONE BANK (USA), N.A. OLD DOCK ROAD PROPERTIES LLC, Defendants.
TO: ALISA LEONA SONDAK, ESQ. SONDAK LAW GROUP, P.C. Attorneys for Plaintiff 110 East 59th Street, 23rd Floor New York, New York 10023 alisa@sondaklaw.com DANIEL H. RICHLAND, ESQ. Attorney for Plaintiff 152 West Hoffman Avenue, Suite 11 Lindenhurst, New York 11730 CHRISTOPHER MOLLICA Defendant, Pro Se 5 Raphael Street Huntington Station, New York 11746 via U.S.P.S. regular mail JONATHAN BRETT NELSON, ESQ. DORF & NELSON, LLP Attorneys for Defendant SYNERGIX FUNDING GROUP, LLC 555 Theodore Fremd Avenue, Suite A300 Rye, New York 10580 jnelson@dorlaw.com ANTHONY M. PROVENZANO, ESQ. Attorneys for Defendant RAYMOND STURINO 320 Westchester Avenue Port Chester, New York 10573 aprovenzano63@ymail.com MICHAEL L. SHANKER, ESQ. SHANKER LAW GROUP Attorneys for Defendant IVY HILL COMMODITIES CORP. 101 Front Street Mineola, New York 11501 mshanker@shanklerlaw.com
NYSCEF DOC. NO. 308 To commence the statutory time period for appeals as of right [CPLR 5513(a)], you are advised to serve a copy of this order, with notice of entry upon all parties. DECISION AND ORDER PAGONES, J D., A.J.S.C.
Defendant Synergix Funding Group, LLC moves for an order, pursuant to CPLR §4101 et seq., striking the plaintiff's jury demand. The following papers were read:
| Notice of Motion-Affirmation-Memorandum of Law | 1-3 |
| Affirmation in Opposition | 4 |
| Affirmation-Memorandum of Law | 5-6 |
Upon the foregoing papers, the motion is decided as follows:
Plaintiff's complaint seeks the following relief:
"A. A Judgment determining that Plaintiff is the 75% owner of the Premises;
B. A Judgment barring all of the defendants from all claim to an estate or interest in the Premises, except Defendant Christopher C. Mollica and every person claiming an estate or interest derived from him;
C. A Judgment awarding possession of the Premises to Plaintiff, subject to the rights of any person in possession who derives their title or estate from or
through Plaintiff or Defendant Christopher C. Mollica;
D. An Order directing any person in possession of the Premises to attorn to Plaintiff and any other person the Court determines to have an ownership interest in the Premises;
E. An Order declaring that Fraudulent Deed No. 1 is fraudulent;
F. An Order vacating and setting aside Fraudulent Deed No. 1;
G. An Order declaring that Fraudulent Deed No. 2 is fraudulent;
H. An Order vacating and setting aside Fraudulent Deed No. 2;
I. An Order directing Defendant William A. Ruzza, Jr. and Defendant Christopher C. Mollica to account for all sums collected from the rents collected from the Premises;
J. A Judgment against Defendant William A. Ruzza, Jr. and Defendant Christopher C. Mollica for an amount to be determined by this Court for any sums due and owing to Plaintiff for rents collected by said defendants from the Premises, together with interest, costs and expenses, disbursements, and reasonable attorneys' fees..."
The deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial (see CPLR §4102(a); Zutrau v. ICE Sys., Inc., 128 AD3d 1058 [2nd Dept 2015] leave to appeal denied by 26 NY3d 907; Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 AD3d 481 [2nd Dept 2009]; Hebranko v. Bioline Labs., 149 AD2d 567 [2nd Dept 1989]).
Here, the plaintiff's complaint seeks to determine title to real property and includes allegations setting forth an equitable cause of action for an accounting by defendants William A. Ruzza, Jr. and Christopher C. Mollica. By doing so, the plaintiff has waived her right to a jury trial (see Whipple v. Trail Props., 261 AD2d 470 [2nd Dept 1999]; Noto v. Headley, 21 AD2d 686 [2nd Dept 1964]).
Accordingly, the defendant's motion is granted. Counsel are directed to appear for a pretrial conference on March 24, 2017 at 10:30 a.m. Adjournments are only granted with leave of the Court.
The foregoing constitutes the decision and order of this Court. This decision and order has been electronically filed. Dated: February 16, 2017
Poughkeepsie, New York
ENTER
/s/ _________
HON. JAMES D. PAGONES, A.J.S.C. TO: ALISA LEONA SONDAK, ESQ.
SONDAK LAW GROUP, P.C.
Attorneys for Plaintiff
110 East 59th Street, 23rd Floor
New York, New York 10023
alisa@sondaklaw.com
DANIEL H. RICHLAND, ESQ.
Attorney for Plaintiff
152 West Hoffman Avenue, Suite 11
Lindenhurst, New York 11730
CHRISTOPHER MOLLICA
Defendant, Pro Se
5 Raphael Street
Huntington Station, New York 11746
via U.S.P.S. regular mail
JONATHAN BRETT NELSON, ESQ.
DORF & NELSON, LLP
Attorneys for Defendant
SYNERGIX FUNDING GROUP, LLC
555 Theodore Fremd Avenue, Suite A300
Rye, New York 10580
jnelson@dorlaw.com
ANTHONY M. PROVENZANO, ESQ.
Attorneys for Defendant
RAYMOND STURINO
320 Westchester Avenue
Port Chester, New York 10573
aprovenzano63@ymail.com
MICHAEL L. SHANKER, ESQ.
SHANKER LAW GROUP
Attorneys for Defendant
IVY HILL COMMODITIES CORP.
101 Front Street
Mineola, New York 11501
mshanker@shanklerlaw.com 021616 decision&order