Opinion
June 4, 1991
Appeal from the Supreme Court, New York County (Burton S. Sherman, J.).
In May 1983, Mr. Markel Berger and Ms. Joan Snyder (plaintiffs) commenced a declaratory judgment action against Malneut Realty Corp. (defendant) to determine if plaintiffs were statutorily protected Loft tenants. Following the service and filing of its answer, containing affirmative defenses, and a counterclaim for ejectment and possession of the property, defendant moved for summary judgment. The IAS Court, in its order and judgment, inter alia, granted defendant's motion for summary judgment, and referred the issue of use and occupancy to a Special Referee to hear and determine for an assessment of damages. The plaintiffs appeal only from so much of the order as referred the issue of use and occupancy to a Referee.
It is well established law that a party's right to a jury trial is not lost, when a motion for summary judgment is decided against such party (Livingston v Blumenthal, 248 App. Div. 138 [1st Dept 1936]; Ballon v Galison, 281 App. Div. 960 [1st Dept 1953]). Since the defendant's counterclaim is for ejectment, and historically there has been a right of a jury trial in an ejectment action (City of Syracuse v Hogan, 234 N.Y. 457; Midwood Coop. v Danoff, 45 A.D.2d 842), and our examination of the record indicates that plaintiffs have not waived said right, we find that the IAS Court erred, by referring the issue of use and occupancy to a Special Referee to hear and determine.
Accordingly, we reverse the order and judgment only to the extent appealed from, and direct an immediate jury trial on the issue of use and occupancy.
Concur — Murphy, P.J., Milonas, Ross and Rubin, JJ.