Opinion
03-09-2017
SECURITY PACIFIC NATIONAL BANK, Plaintiff–Respondent, v. Tracie EVANS, Defendant–Appellant, Arnold Lepelstat, et al., Defendants.
Tracie Evans, appellant pro se. Belkin Burden Wenig & Goldman, LLP, New York (Magda L. Cruz of counsel), for respondent.
Tracie Evans, appellant pro se.
Belkin Burden Wenig & Goldman, LLP, New York (Magda L. Cruz of counsel), for respondent.
SWEENY, J.P., MAZZARELLI, MOSKOWITZ, KAHN, JJ.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered April 14, 2015, which, among other things, granted plaintiff's motion to strike defendant Tracie Evans's jury demand, unanimously affirmed, without costs.
The motion court properly determined that defendant has no right to a jury trial on the triable issues identified by this Court on a prior appeal (62 A.D.3d 512, 514, 878 N.Y.S.2d 732 [1st Dept.2009] ). Since both parties sought equitable relief—that is, specific performance of their settlement agreement or injunctive relief—defendant is not entitled to a jury trial (see Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 A.D.3d 481, 482, 873 N.Y.S.2d 202 [2d Dept.2009] ; Trepuk v. Frank, 104 A.D.2d 780, 781, 480 N.Y.S.2d 889 [1st Dept.1984] ; CPLR 4101, 4102[c] ). Even if defendant now asserts a claim for money damages, and even if she were to withdraw her equitable claims, that would not revive or create a right to a trial by jury that was waived by asserting equitable claims with respect to the same transaction (see Zimmer–Masiello, Inc. v. Zimmer, Inc., 164 A.D.2d 845, 846–847, 559 N.Y.S.2d 888 [1st Dept.1990] ; Trepuk, 104 A.D.2d 780, 480 N.Y.S.2d 889 ; cf. CPLR 4102 [c] ).
We have considered defendant's remaining arguments and find them unavailing.