Opinion
February 8, 1996
Appeal from the Supreme Court, New York County (Louis York, J.).
On this appeal from the IAS Court's order, plaintiff cannot challenge the court's ruling, during trial, to discharge the jury and convert the hearing into a nonjury trial ( see, Royal v Brooklyn Union Gas Co., 122 A.D.2d 132, 133). CPLR 5501 (a) (3) does not apply absent entry of judgment. In any event, were this Court to reach the merits of the claim, we would find that plaintiff waived any right to a jury trial by failing to make objection to the ruling and by participating, without protest, in the nonjury trial ( see, Vias v. Rohan, 119 A.D.2d 672; Petty v Field, 97 A.D.2d 538, 539, appeal dismissed 61 N.Y.2d 902). We would also find plaintiff was not entitled to a jury trial since its action was primarily equitable in nature ( see, Kaplan v. Long Is. Univ., 116 A.D.2d 508, 509).
Concur — Milonas, J.P., Ellerin, Wallach, Kupferman and Williams, JJ.