Opinion
June 5, 1992
Appeal from the Supreme Court, Monroe County, Curran, J.
Present — Callahan, J.P., Boomer, Balio, Lawton and Doerr, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly determined that plaintiffs did not waive their right to a jury trial by requesting injunctive relief in the original or amended complaint. The original complaint contained seven causes of action for money damages arising out of an alleged wrongful termination of an employment contract. Although plaintiffs requested temporary injunctive relief pending resolution of the lawsuit, that request was incidental to a demand for money damages, and the essence of the dispute was the wrongful termination. Under the circumstances, the assertion of a claim for temporary relief did not constitute a waiver of the right to a jury trial (see, Hebranko v. Bioline Labs., 149 A.D.2d 567; Cowper Co. v. Buffalo Hotel Dev. Venture, 99 A.D.2d 19; see also, Dairy Queen v. Wood, 369 U.S. 469, 477-478).
We reach the same conclusion regarding the amended complaint. Although the fifth cause of action of the amended complaint requested both money damages and the equitable remedies of an accounting and the imposition of a constructive trust, the essence of that cause of action is that plaintiffs were fraudulently induced into making the contract, an issue that is triable by jury. Moreover, the fraudulent inducement constituted a separate transaction from the wrongful termination alleged in the remaining causes of action (see, Regan v. Martindale, 72 A.D.2d 676; Fleischer v. Institute for Research in Hypnosis, 57 A.D.2d 535).