Opinion
15641 Index No. 158856/17 Case No. 2021–04662
03-31-2022
Guy AROCH, Plaintiff–Appellant, v. 391 BROADWAY LLC et al., Defendants–Respondents.
Abraham PLLC, New York (Joshua E. Abraham of counsel), for appellant. Rivkin Radler LLP, New York (Kenneth A. Novikoff of counsel), for respondents.
Abraham PLLC, New York (Joshua E. Abraham of counsel), for appellant.
Rivkin Radler LLP, New York (Kenneth A. Novikoff of counsel), for respondents.
Renwick, J.P., Gesmer, Singh, Rodriguez, JJ.
Order, Supreme Court, New York County (Lewis J. Lubell, J.), entered on or about November 22, 2021, which granted defendants’ motion to strike plaintiff's demand for a jury trial, unanimously affirmed, without costs.
The court properly struck plaintiff's jury demand, as it is undisputed that plaintiff's claim for foreclosure on a vendee's lien is an equitable claim ( Honua Fifth Ave. LLC v. 400 Fifth Realty LLC, 111 A.D.3d 579, 580, 976 N.Y.S.2d 45 [1st Dept. 2013] ), and a review of the complaint reveals that the case sounds in equity (see Kaplan v. Long Is. Univ., 116 A.D.2d 508, 509, 497 N.Y.S.2d 378 [1st Dept. 1986] ). When, as here, the "complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, there is a waiver of a plaintiff's right to a jury trial" ( Errant Gene Therapeutics, LLC v. Sloan–Kettering Inst. for Cancer Research, 176 A.D.3d 459, 107 N.Y.S.3d 847 [1st Dept. 2019] ). The fact that plaintiff is seeking money damages "does not, in and of itself, guarantee entitlement to a jury trial" ( Phoenix Garden Rest., Inc. v. Chu, 234 A.D.2d 233, 234, 651 N.Y.S.2d 510 [1st Dept. 1996] ). Furthermore, plaintiff himself characterized the action as one sounding in equity in the note of issue, thus waiving his right to a jury trial.
We have considered plaintiff's remaining contentions and find them unavailing.