Opinion
1274, 601973/07.
05-26-2016
David MOYAL, derivatively on behalf of Group IX, Inc., Plaintiff–Respondent–Appellant, v. Stu SLEPPIN, et al., Defendants–Appellants–Respondents.
Sadis & Goldberg, LLP, New York (Jennifer Rossan of counsel), for appellants-respondents. Morrison Cohen LLP, New York (David A. Piedra of counsel), for respondent-appellant.
Sadis & Goldberg, LLP, New York (Jennifer Rossan of counsel), for appellants-respondents.
Morrison Cohen LLP, New York (David A. Piedra of counsel), for respondent-appellant.
FRIEDMAN, J.P., ACOSTA, GISCHE, WEBBER, JJ.
Opinion Order, Supreme Court, New York County (Eileen Bransten, J.), entered November 5, 2015, which denied defendants' motion to strike plaintiff's demand for a jury trial and for their equitable defenses to be tried by the court, and denied plaintiff's cross motion seeking recusal of Justice Bransten, unanimously modified, on the law, defendants' motion granted in its entirety, and otherwise affirmed, without costs.
Supreme Court erred in finding that plaintiff in this shareholders' derivative action was entitled to a jury trial, since the claims brought in his capacity as a shareholder were “derivative and therefore equitable in nature” (Sakow v. 633 Seafood Rest., Inc. 25 A.D.3d 418, 419, 808 N.Y.S.2d 192 [1st Dept.2006], lv. denied 7 N.Y.3d 701, 818 N.Y.S.2d 191, 850 N.E.2d 1166 [2006] ; Horizon Asset Mgt., LLC v. Duffy, 106 A.D.3d 594, 595, 967 N.Y.S.2d 17 [1st Dept.2013] ). Contrary to plaintiff's contention, the motion was not untimely, since a motion to strike a demand for a jury trial may be made at anytime up to the opening of trial (A.J Fritschy v. Chase Manhattan Bank, 36 A.D.2d 600, 600, 318 N.Y.S.2d 369 [1st Dept.1971] ), and we find no prejudice in defendants' delay of a few months, following the restoration of the case to the calendar, in making their motion.
Although we need not reach the issue in light of our conclusion, we note, in any event, that pursuant to CPLR 4101, defendants' equitable defenses of estoppel, laches and unclean hands should be tried by the court (see Cadwalader Wickersham & Taft v. Spinale, 177 A.D.2d 315, 576 N.Y.S.2d 24 [1st Dept.1991] ).
None of the Justice's comments cited by plaintiff warrant recusal (see Hass & Gottlieb v. Sook Hi Lee, 55 A.D.3d 433, 434, 866 N.Y.S.2d 72 [1st Dept.2008] ).
We have considered plaintiff's remaining contentions and find them unavailing.